Terminating the Employment Relationship

competent medical opinion.” 169 For ’37 Act employers, a member is qualified for a disability retirement if he or she is permanently incapacitated from the performance of duty. 170

Thus, there is a two part analysis: (1) whether the employee is incapacitated from the performance of his or her usual duties; and (2) whether that incapacitation is permanent (for PERS and ’37 Act) or of extended and uncertain duration (for PERS only). 171 a. What is “Incapacitated”? Incapacitated means the substantial inability of the employee to perform his or her usual duties. 172 The member need not be substantially incapacitated from the performance of his or her position with any public agency. Rather, the member need only be substantially incapacitated from the performance of his or her position with his/her current public employer. 173 If the employee’s disability is the result of an injury incurred in the course and scope of employment for which a workers’ compensation claim was filed, the employee will usually receive a “disability rating” from a physician in the underlying workers’ compensation case. This rating is typically stated in terms of a percentage of permanent disability. However, these permanent disability ratings are not dispositive as to whether the employee is substantially incapacitated from the performance of his or her usual duties for purposes of a disability retirement. Therefore, an employer should not rely on these disability ratings, alone. 174 Similarly, the presumptions under the Labor Code are inapplicable for the purposes of determining whether an employee is entitled to a disability retirement. 175 The employee must also be presently, substantially incapacitated. The fact that the employee’s condition coupled with the performance of his or her usual job duties may increase the employee’s chance for future injury, does not support a finding that the employee is substantially incapacitated at the time of application for a disability retirement. Generally, prophylactic work restrictions will not suffice to find an employee presently incapacitated. In addition, an employee’s “fears” that he or she will be injured further in the course of employment cannot be considered “mentally disabling” in order to qualify the employee for disability retirement. 176 However, where the employee’s condition is such that if he or she were to return to the work environment and it is medically certain the employee would become immediately disabled because of the nature of the employee’s condition, then the employee may be found presently incapacitated. 177 b. What Are the “Usual Duties”? In determining if an employee is substantially incapacitated from performing his or her usual duties, an employer must look at the totality of the member’s job duties and the frequency at which those duties are performed. The usual duties are typically listed in the job description, but the job description should not be the exclusive source of ascertaining the member’s usual duties. 178 The employer should consult the member, the member’s supervisor, and other sources to determine the member’s usual duties and frequency with which they are performed.

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 58