Resolution No. 80982
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RESOLUTION NO. 8098
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON GRANTING THE DISABILITY RETIREMENT OF RANDY
BOHLANDER, A LOCAL SAFETY MEMBER EMPLOYED BY THE
CITY OF VERNON (Government Code Sections 21154 and
21156)
WHEREAS, the City of Vernon (hereinafter referred to as
"Agency") is a contracting agency of the Public Employees' Retirement
System; and
WHEREAS, the Public Employees' Retirement Law requires that a
contracting agency determine whether an employee of such agency in
employment in which he is classified as a local safety member is
physically or mentally incapacitated to perform his duties for purposes
of the Public Employees' Retirement Law; and
WHEREAS, by Minute Order on October 23, 2002, the Agency
approved advanced disability pension payments to Randy Bohlander
employed by the Agency in the position of Fire Engineer in the Vernon
Fire Department; and
WHEREAS, the Agency, pursuant to Government Code Section
21152'(c), applied to the Public Employees' Retirement System ("PERS")
on behalf of Mr. Bohlander for disability retirement on September 5,
2002; and
WHEREAS, by letters dated October 10, 2002 and October 29,
2002, Bruce V. Malkenhorst, City Administrator, notified Mr. Bohlander
that the matter of his disability retirement would be considered by the
City Council; and
WHEREAS, the City Council of the City of Vernon has reviewed
medical evidence and other evidence relevant to whether Mr. Bohlander
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was incapacitated.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon hereby
finds and determines that Randy Bohlander is disabled within the
meaning of the Public Employees' Retirement Law from the performance
of his duties in the position of Fire Engineer in the Vernon Fire
Department.
SECTION 2: The City Council of the City of Vernon hereby
finds and determines that such disabilities are industrial, in that they
are the result of injury or disease arising out of and in the course of
employment, that neither the City Council of the City of Vernon nor Mr.
Bohlander has applied to the Workers' Compensation Appeals Board for a
determination pursuant to Government Code Section 21166 to determine
whether such alleged disability is industrial, and that there is no
possibility of third -party liability in this case.
SECTION 3: The City Council of the City of Vernon hereby
determines from the reports of Dr. Stanley J. Majcher dated October 30,
2002, November 1, 2002 and November 6, 2002, that Mr. Bohlander is
unable to perform the essential job function of his position as a Fire
Engineer in the Vernon Fire Department, that no appropriate reasonable
accommodation can be made to do so and that the permanent and stationary
date for retirement purposes is October 29, 2002. The City Council
therefore determines that Mr. Bohlander should be retired. The last day
Randy Bohlander was on the City',s payroll was September 3, 2002, and Mr.
Bohlander retired effective September 4, 2002.
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SECTION 4! The City Clerk shall notify Mr. Bohlander of the
City Council's determination granting his application for disability
retirement.
SECTION 5: The City Clerk of the City of Vernon shall
certify to the passage of this resolution, and thereupon and
thereafter the same shall be in full force and effect.
APPROVED AND ADOPTED this 6th day of November, 2002.
ATTEST:
BRUCE V. MALKENHORST, City Clerk
v
LEONIS C. MALBURG, Ma or
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STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
I, BRUCE V. MA.LKENHORST, City Clerk of the City of Vernon, do
hereby certify that the foregoing Resolution, being Resolution No.
8098, was duly adopted by the City Council of the City of Vernon at a
regular meeting of the City Council duly held on Wednesday, November 6,
2002, and thereafter was duly signed by the Mayor of the City of
Vernon.
(SEAL)
BRICE V. MALKENHORST, City Clerk
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SUPPORTING
DOCUMENTS
I •� e
CITY COUNCIL
LEONIS C. MALBURG
Mayor
THOMAS A. YBARRA
Mayor Pro-Tem
WM. `BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W. MICHAEL MCCORMICK
Councilman
BRUCE V. MALKENHORST
City Administrator/City Clerk
FAX (323) 826-1438
REcpn
Ep
EDUARDO OLIVO
City Attorney
FAX: (562) 869-1883
72 KEVIN WILSON
Director of Community Services & Water
OFFICE FAX: (323) 826-1435
CITY HALL
4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058
TELEPHONE (323) 583-8811
November 6, 2002
Sent Via Facsimile & U.S. Mail
(909) 860-3995 facsimile
Martin Vega
Colen & Lee
1470 South Valley Vista Drive
Suite 230
Diamond Bar, California 91765
KENNETH J. DeDARIO
Director of Municipal Utilities
FAX: (323) 826-1425
STEVEN E. PARKER
Fire Chief
FAX: (323) 826-1407
BRUCE W. OLSON
Police Chief
FAX: (323) 826-1481
.V'
VP
Re: Request for Medical Records With Respect to the
City of Vernon (the "City") Safety Member's
Application for Disability Retirement
Determination
Dear Mr. Vega:
Per our conversation yesterday, we 'believe that there
has been unnecessary confusion regarding the City's ability to
receive copies of medical records in connection with its
determination of whether or not a safety member is "disabled"
pursuant to Section 21156 of the Government Code. For -the
reasons set forth below, we believe (a) that the City is
required to have such information in order that it may make its
determination based upon substantial evidence and (b) that
providing such information to the City will not violate the
confidentiality provisions applicable to Third Party
Administrators in regard to medical records of workers'
compensation applicants.
'Coles and Lee
November 6, 2002
Page 2
Analysis
Mr. Bohlander has applied for disability retirement
under the Personnel Employees Retirement System ("PERS"). Upon
receipt of the employee's application for disability retirement,
the City is required to make a determination of "disability"
based on the employee's medical records which indicate whether
said applicant is physically or mentally incapacitated for the
performance of said applicant's usual duties. Without such
information, the City lacks a substantial basis to upon which to
make an evidentiary finding for purposes of PERS.
A. Confidentiality of Employee Medical Records
Colen and Lee in correspondence dated January 20, and
April 10, 2000, stated that "new legislation substantially
expanded the confidentiality of medical records laws, as
discussed in the California Labor Code § 3762." Colen and Lee
concluded that such legislation provides that Third Party
Administrators "are now prohibited from providing to employers,
medical reports, medical bills, or medical record summaries
which include an employee's diagnosis or medical history" and
that there is no exception in the Labor Code which gives the
Third Party Administrator the right to provide the employer with
copies of medical reports or medical histories. We disagree
with these statements and do not believe that Labor Code § 3762
is dispositive on the issue of an employee's responsibility to
submit his medical records in connection with disability
retirement under PERS.
First, the Government Code sections discussed below
and not the Labor Code control with regard to disability
retirement under PERS. The California Supreme Court has stated
that the workers compensation scheme under the Labor Code "does
not extend, either expressly or impliedly, to retirement
disability under the PERS law, a different legislative scheme."
See Pearl v. Workers' Compensation Appeals Board et al. (2001)
26 Cal. 4t 189, 196. Although the workers' compensation law in
the Labor Code and the PERS law in the Government Code are not
coordinated in all respects and are administered by independent
boards, it is clear that they supplement each other.
The jurisdiction of the Workers' Compensation Appeals
Board is exclusive only in relation to its own objectives and
purposes and at the very most overlaps the subject matter
` Colen and Lee
November 6, 2002
Page 3
jurisdiction of the pension board on a single issue of fact
only, the issue as to whether an injury or disability is
service -connected. Reynolds v. City of San Carlos (1981) 126
Cal. App. 3d 208, 213. Thus, the Labor Code section cited by
Colen and Lee does not restrict the Third Party Administrator
with regard to the particular disability retirement
determinations at issue here.
Moreover, the exception at Labor Code § 3762(c)(2)
provides that the Third Party Administrator shall disclose
medical information to the City "regarding the injury for which
workers' compensation is claimed that is necessary for the
employer to have in order for the employer to modify the
employee's work duties." Here, the City will make a
determination to modify the employee's work duties by
determining his or her incapacity. Consequently the Third Party
Administrator should provide the City with the employee's
medical records for purposes of the determination which the City
is required to make.
This conclusion is consistent with the more general
proposition that one's medical records are not discoverable
unless put at issue by the person seeking the confidentiality
protection. See Britt v. Superior Court of San Diego (1978) 20
Cal. 3d 844 (Court finding that there is no privilege as to a
communication relevant to an issue concerning the condition of
the patient if such issue has been tendered by the patient).
Here, since the employee is asking for the City to determine his
"disability" the employee puts his medical records with respect
to his disability at issue.
B. A Local Safety Employee Applying for Disability
Retirement Must Submit Substantial Evidence to the
City
California Government Code § 20026 provides that
"disability" and "incapacity for performance of duty" as a basis
of retirement, mean
Disability of permanent or extended and uncertain
duration, as determined... 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.]
Colen and Lee
November 6, 2002
Page 4
This section sets forth the definition of "disability";
Government Code § 21156 additionally provides that the City
shall make the determination of `disability." Section 21156
again states that the City, as the governing body of the
contracting agency, is entitled to medical records of a safety
employee for purposes of disability retirement under PERS:
If the medical examination and other available
information show to the satisfaction of... in the
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 is incapacitated physically or mentally for
the performance of his or her duties in the state
service and is eligible to retire for disability,
the board shall immediately retire him or her for
disability.... [Emphasis added.]
Based upon the evidence presented by the employee, the City, as
the "contracting agency," must make a determination. See, e.g.,
Watkins v. City of Santa Ana et al. (1987) 189 Cal. App. 3d 393
(Court finding that the initial determination of whether a local
safety employee is disabled from performing his job is made by
the city, not the Workers' Compensation Appeals Board).
The Government Code provides that as the agency
responsible for determining disability, the City is required to
conduct an evidentiary hearing and any ensuing determination
must be based on an employee's medical records. The City
Council cannot make a determination of industrial disability if
there is no evidence to support such a determination. I also
note that the City may not base its determination solely on the
advice of the City's Workers' Compensation attorney. Such
advice is not evidence.
Although not specifically stated in the Government
Code, the burden of proof is on the employee to establish his
right to disability retirement. See Evidence Code § 500;
Cornell v. Reilly (1954) 127 Cal. App. 2d 178, 184 (Court
finding that in administrative proceedings, the burden of proof
is upon the party asserting the affirmative). Such proof cannot
be based on surmise or conjecture, suspicion or theoretical
conclusions, or uncorroborated hearsay. Id. If the employee
fails or refuses to submit medical records, there is no basis
for the City to make any determination. In such a situation,
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Colen and Lee
November 6, 2002
Page 5
the City would have to deny the employee's application for
disability because there would be no basis upon which to make a
positive determination of disability.
Conclusion
Our recommendations in light of our review of the law
in this area are as follows:
1. Forward any and all medical reports with respect
to a City employee applying for disability retirement
to my office so that the City may promptly address
determine whether such employee is "incapacitated" for
purposes of disability retirement under PERS.
2. We will notify any employee who has applied for
disability retirement of his or her obligation to
submit medical examination reports and other available
information with regard to his or her disability
retirement claim. If you have ongoing confidentiality
concerns with regard to specific records, we could ask
for a release of such records from the employee.
Please do not hesitate to call me if you have any
questions with regard to these matters.
Sincerely,
r (,• Q�
Eduardo Olivo
City Attorney
CC: John Tharp -
via facsimile only (714) 573-9131
City Administrator
Joan Francone, Personnel Assistant