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Return to Work. How do I return to work under California GC 31725; using my Resonable Accommmodation?

My Department filed a Disability Retirement Application for me; GC 31721.   OCERS; the Retirement Board Denied the Application; returned me to the County under GC 31725.6.   It turned into GC 31725.   My Employer will not take me back with the Reasonable Accommodations that I had at the time of their GC 31721 Application.   They will take me back at any time with no Accommodations.   

The attached letter from the HR Manager shows our GC 31725 problem.   I’ve been trying for a few weeks now to find an Attorney to help us; but I’ve only been able to find 2 Attorneys who even know what GC 31725 is; and one of them is on Just Answers.   (Looking in LA and Orange County)

Please read the letter and point me in the right direction.

How hard would it be for me to get a Writ to enforce GC 31725?  

Could I do it?

If you take cases in Orange County could you look at ours?

If you do not; could you give me a few names of Attorneys that work GC 31725 cases in Orange County?

If not; could you tell me what kind of Attorney I should be looking for?

 

Thank you,

Michael and Joyce

Msimon616@aol.com

442-999-5375

            ERIC H. WOOLERY, CPA 

            AUDITOR-CONTROLLER

May 11, 2017  This is still their current position.

Joyce

San Marcos, CA 92069

Regular and Certified Mail

Subject: Follow-Up Re: Interactive Process Meeting and Denial Of Disability Retirement Application

Dear Ms. ,

On March 17, 2017 we conducted a telephonic Interactive Process Meeting; your husband Michael Simon also participated in the meeting. You informed me that the Orange County Employee Retirement System (OCERS) Board of Retirement would be addressing your application for disability retirement on March 20, 2017. You explained the OCERS Board of Retirement recommended to deny your service and non-service connected disability retirement application due to insufficient evidence of permanent incapacity. I informed you during our meeting (and followed up via email), that the County is willing to allow you to return to work in the same position you had prior to January 2013, upon clearance by Employee Health Services.

On March 27, 2017 we received a letter dated March 23, 2017 from OCERS indicating the Board of Retirement denied your application for service connected disability retirement due to insufficient evidence of permanent incapacity and job causation. I contacted you on April 3, 2017 to schedule an Interactive Process Meeting which was scheduled for April 14, 2017.

On April 14, 2017 and April 28, 2017, we held a telephonic Interactive Process Meeting. Administrative Manager II Leslie Sorrells and your husband Michael  also participated in the meeting. During the Interactive Process Meeting, we reviewed the work restrictions we have on file (Attached).

As you are aware, in June 2016 an OCERS physician specializing in the field of Orthopedic Surgery determined that you should be given the following medical restrictions:

• Avoid lifting more than 20 lbs and repetitive bending and stooping.

• Allowed to take a 10 minute break for every 1 hour of sitting.

• Limited keyboarding - no more than 2 hrs in the morning and 2 hrs in the afternoon with 10 minute of break for every hour.

• Avoid very forceful activities of her right wrist - gripping, grasping.

May 11, 2017 Page 2

We also discussed that the other permanent work restrictions are as follows:

• 100% Total Disabled.

• Low Back - Precluded from very heavy work.

• Right Wrist - Precluded from repetitive forceful gripping & grasping with the right upper extremity and prolonged computer keyboard input with right upper extremity (clarification: applicant should only do keyboarding for 10 to 15 minutes at which point she should switch to a different activity, not be entitled to a break from work duties). [There is no clarification; the Reasonable Accommodation is a 45min. rest break every hour.]

We discussed that the process to return to work is to be cleared by the County of Orange Employee Health Services (EHS). During the Interactive Process Meeting, you indicated you contacted County of Orange EHS and they advised you that additional documentation is needed such as a recent medical certification with or without work restrictions. During the Interactive Process Meeting Mr. Simon stated we have to return you to work without being cleared by the County of Orange EHS. This is incorrect. As I informed you, per the County General Unit Memorandum of Understanding you are required to be cleared by County of Orange Employee Health Services (Attached).   [This is incorrect even without GC 31725; Joyce is not under Section 4&5; she is under MOU Article IV Section 11; Workers’ Comp.]

Since you had additional questions, we agreed that I would contact you with responses to your questions and engage in the Interactive Process Meeting to have you return to work as soon as possible.

After consulting with County Counsel, we are also writing to respond to the recent email correspondence from your husband to advise that we disagree with the position stated therein including, but not limited to, the statement that Joyce's status now falls under Government Code 31725."

As an initial matter, in accordance with the County Employees Retirement Law of 1937, the County of Orange does not dismiss employees for disability but applies for disability retirement of any employee believed to be disabled. (Gov't Code § 31721.) That is in fact what the County did in your case. In January 2013, after receiving notice of your permanent work restrictions from the Workers' Compensation carrier, the County filed a disability application on your behalf. Notably, this was done even prior to a final determination of the WCAB which occurred in June 2013.

Moreover, the County has never dismissed you or separated you from County employment. In fact, you have been on some form of unpaid leave status since 2010 and the Auditor-Controller's office has kept your position vacant for those 7 years pending the determination of your disability retirement application. And, as you are aware, in June 2016 following a determination by OCERS that you should be given certain medical restrictions and our telephonic Interactive Process Meeting, the County agreed to grant your request to remain on an unpaid Leave of Absence pending the final decision of OCERS on your disability retirement application.

May 11, 2017 Page 3

Finally, in response to your query as to when you can report for work, as the undersigned informed you on March 17, 2017 and again on April 28, 2017, the County remains willing to allow you to return to work in the same position you had prior to January 2013, upon clearance by Employee Health Services as required by the OCEA MOU (Article IV, Section 5).

Please contact the undersigned at (714) 834-2353 to advise when you have obtained medical clearance so that we can make the necessary arrangements for your return to work. In the alternative, the County remains willing to continue your unpaid leave of absence pending the results of your appeal of OCERS' denial of your disability retirement application.

Sincerely,

Hilda

Human Resources Manager

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