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DPA Case Number 04-C-0122 - Reinstatement After Automatic Resignation
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DPA Case Number 04-C-0122 - Reinstatement After Automatic Resignation
Final Non-Precedential Decision Adopted: August 15, 2005
By: Michael T. Navarro, DPA Director
This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on March 16 and 17 and May 23 and 24, 2005, at Riverside, California.
The appellant was present and was represented by Shawn Peyman Larry, Labor Relations Representative, California Attorneys, Administrative Law Judges and Hearing Officers in State Employment (CASE).
Anthony Mischel, Attorney at Law, represented the Department of Industrial Relations (DIR), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.
I - JURISDICTION
Respondent automatically resigned appellant effective close of business October 18, 2004, for being absent without approved leave from September 16, 2004, through October 8, 2004. CASE filed a request (appeal) for reinstatement after automatic resignation on October 21, 2004.
The appeal complies with the procedural requirements of Government Code section 19996.2.
II - CAUSE FOR APPEAL
Appellant alleged she had a valid reason for being absent because she was ill as a result of a work injury. She alleged she was granted leave for the time she is charged with being absent without leave or, alternatively, that she did all she could to obtain leave. She further alleged she is ready, able and willing to return to work.
III - REASON FOR BEING ABSENT AND MEDICAL BACKGROUND
Appellant did not work from September 16 through October 8. She was suffering from the effects of a January work injury and the effects of medication prescribed to treat her January injury. During this period she was waiting for her physicians to agree on the cause of her sudden vertigo and low back and leg pain. She was also waiting for the State Compensation Insurance Fund (SCIF) to authorize further tests and treatment.
Appellant had six previous work injuries since 1992 involving various parts of her body including two injuries to her low back, injury to both of her shoulders, injury to both of her knee joints, and injury to her left elbow joint. She was also involved in four automotive accidents with whiplash injuries.
Appellant’s workers’ compensation doctor was appellant’s primary treating physician
for her January work injury as well as for a May 2002 back injury that she also incurred while working for the DIR.
Appellant began missing work as a result of her January injury and was declared temporarily totally disabled (TTD) as of January 29. She was declared temporarily partially disabled (TPD) on or about April 13. This means she was able to return to work with restrictions, but that she might have periods of total disability. Appellant did return to work with restrictions. Appellant’s workers’ compensation doctor determined appellant was permanent and stationary (P&S) for her lower back on June 4.
Appellant’s condition worsened between June 4 and August 2. Appellant reported increased pain to her upper back and neck and shoulder region. On August 2, appellant’s workers’ compensation doctor changed appellant’s disability status from P&S to TPD, and he requested authorization from SCIF for additional diagnostic testing and physical therapy. SCIF approved the diagnostic testing and appellant underwent some tests on September 2. These tests showed appellant had some abnormalities associated with her cervical spine.
Appellant had an appointment with her workers’ compensation doctor on September 13. They discussed the results of the September 2 tests and discussed surgery for her neck and low back. Appellant testified her workers’ compensation doctor advised her to stop working but that she told him she wanted to continue working until SCIF approved her surgery. In his September 13 report, the workers’ compensation doctor indicated appellant was able to continue working with the same restrictions he had prescribed when he had previously declared appellant P&S on June 4. However, he also indicated he was unable to determine appellant’s P&S status at that time. Appellant worked September 14 and September 15.
Appellant began missing work on September 16. She complained of low back pain and weakness in her right leg. She also began to be dizzy and weak. She suspected the medication she was taking for her low back pain was the cause of the dizziness and weakness. She contacted her workers’ compensation doctor’s office and asked the front office personnel to relay a message to the doctor asking for an appointment. The testimony is unclear whether or not the doctor talked with appellant on September 16. However, on September 16, appellant’s workers’ compensation doctor faxed the SCIF Claims Administrator (Adjuster) handling appellant’s case, the results of the September 2 tests and a request for authorizations to perform a discography and selective nerve root block. He also faxed a second copy of his September 13 report indicating appellant could continue to work with restrictions but that he was unable to determine her P&S status. The SCIF claims adjuster referred the authorization request to a SCIF District Office Health Consultant.
On September 20, appellant’s daughter took her to the emergency room. The emergency room physician took appellant off work for one day and ordered her to follow up with her personal physician. Appellant saw her family practice physician on September 21. The family practice physician took appellant off work until September 28 because of vertigo. The cause of the vertigo was unknown. Both the family practice physician and appellant suspected it was caused by the medication the appellant was taking to relieve the effects of her work injury.
Appellant contacted her workers’ compensation doctor’s office again on September 21 and 24 to report her condition and to ask for an appointment. On or about September 24, SCIF’s District Office Health Consultant called appellant’s workers’ compensation doctor and learned that he had put appellant back on TTD. SCIF’s District Office Health Consultant informed the SCIF Claims Adjuster of this in a memorandum dated September 24 and recommended the adjuster delay approval of appellant’s workers’ compensation doctor’s treatment request pending further review.
Appellant saw her family practice physician again on September 27. Appellant was still experiencing low back pain and dizziness. Appellant’s family practice physician prescribed a neurological examination. Appellant was advised to stop taking the medication prescribed for her work injury. Appellant called her workers’ compensation doctor and faxed her family practice physician’s prescription note to him on September 28 along with a request for an appointment.
Appellant had neurological studies performed on October 1. On October 1, she also called her workers’ compensation doctor again and got an appointment to see him on October 6.
Appellant saw her workers’ compensation doctor on October 6. He informed her she was TTD and was not to work.
Appellant saw her workers’ compensation doctor again on October 12. This visit was a result of appellant’s receipt of respondent’s October 8 notice of automatic resignation. As a result of that visit, the workers’ compensation doctor faxed the SCIF Claims Adjuster a letter indicating appellant had been TTD from the effects of her work injury since September 16. He also indicated he had not yet received authorization for the previously requested physical therapy.
After October 12, the SCIF Claims Adjuster notified respondent appellant was being certified as TTD from September 16 through October 12. On October 21, the SCIF Claims Adjuster notified the appellant SCIF was approving temporary disability payments for this period. The Adjuster also authorized payment of a 10% self-imposed penalty for late payment of TDD benefits.
Based on SCIF’s determination that appellant was temporarily disabled as a result of her work-related injury beginning September 16 and continuing through October 8, respondent stipulated appellant had a valid reason for being absent.
IV - REASON FOR NOT OBTAINING LEAVE
Appellant argued she had been granted leave for her absence between September 16 and October 8. She alternatively argued that she did everything she could to obtain leave but was prevented from obtaining leave through the inaction of her doctor’s office and by DIR’s failure to communicate with SCIF.
Appellant’s argument that she was granted leave was based in part on her testimony that her supervisor had a past practice of allowing employees who were absent because of illness to provide a doctor’s note substantiating the absence when they returned to work. The supervisor would then approve the absence retroactively. Appellant’s argument that she believed she was granted leave based on this past practice is without merit. Appellant was informed by several people on multiple occasions that she was to bring in a doctor’s note substantiating her absence from September 16 through October 8 prior to her return to work. Most specifically she was informed in a letter dated October 4 from a Personnel Analyst that she was to provide written substantiation from her physician “immediately” and that failure to do so would result in denial of sick leave and absence without leave. When the appellant received the letter on or about October 6, she knew or should have known she did not have approved leave.
Appellant also argued that respondent granted her leave because her workers’ compensation doctor notified SCIF she was TTD in a September 13 medical status report. This argument is also without merit. The workers’ compensation doctor’s September 13 medical status report indicated appellant was able to return to work with the same restrictions prescribed when appellant had been previously declared P&S. Therefore, it did not substantiate her absence from September 16 through October 8.
Respondent did grant appellant unconditional personal leave for 2.5 hours on September 17. Therefore, pursuant to the requirements of Government Code section 19996.2, appellant cannot be automatically resigned based on absence without leave until close of business September 24, five consecutive working days after September 17. Although respondent granted appellant leave on October 1 to attend a medical appointment in connection with her work-related injury, this leave was conditioned on receipt of a doctor’s note. Appellant knew she had to provide such documentation in order to obtain leave for that day. Prior to her automatic resignation, neither appellant nor her physician(s) presented any definitive documentation directly to respondent indicating appellant was unable to work for any reason from September 20 through October 8.
However, this does not mean that appellant blatantly ignored respondent’s requests for medical substantiation or that SCIF did not know that appellant’s workers’ compensation doctor had declared appellant TTD prior to October 8. Appellant’s argument that she did all she could to obtain leave has some merit.
There was no indication appellant knew she was going to be out for an extended period when she first began missing work on September 16. When she went to the emergency room on September 20, she was only taken off work for one day and told to contact her regular physician. On July 21, appellant’s supervisor told her to submit the doctor’s note from the emergency room. However, he did not tell her when to submit the note. Based on his previous practice and appellant’s lack of knowledge concerning the length of time she would be absent, appellant, at this point, reasonably believed she could bring in the note when she returned to work.
On September 24, appellant’s supervisor told appellant to bring in a doctor’s note substantiating her absences. There was no specific time when appellant was told to bring the note, but appellant understood she should submit it before her return to work. The only medical note appellant had at this time was the note from the emergency room substantiating one day off. Although she had verbal orders from her family practice physician not to return to work, these orders were not given to appellant in writing until September 27. Although appellant had a follow-up appointment with her family practice physician on September 27, she did not have an appointment with her workers’ compensation doctor for her work injury. Both appellant and her family practice physician suspected her dizziness may be related to her work injury medication. However, her workers’ compensation doctor was designated the primary treating physician for that injury and as such had responsibility for determining if appellant’s vertigo was related to her work injury (Labor code section 4016.5 and Title 8, CCR section 9785). Appellant called her workers’ compensation doctor’s office on September 24 but did not get an appointment. It is unclear whether or not she asked that medical substantiation be sent to respondent. By this time, appellant’s workers’ compensation doctor had discussed appellant’s case with SCIF’s District Office Health Consultant and advised SCIF that the appellant was TTD. The SCIF Claims Adjuster received the SCIF’s District Office Health Consultant’s report on or about September 24 stating that appellant was TTD. Although it was the SCIF Claims Adjuster’s usual and customary practice to send copies of all reports to DIR, she did not forward the Health Consultant’s September 24 report to DIR and she did not otherwise contact DIR to indicate appellant was TTD or that appellant’s disability status was in question based on conflicting medical reports. The SCIF Claims Adjuster still wanted written clarification from appellant’s workers’ compensation doctor regarding appellant’s condition. She began contacting appellant’s workers’ compensation doctor for further information.
As the end of the payroll period approached, DIR became more vigilant in asking appellant for a doctor’s note substantiating her absence. Toward the end of September or the beginning of October, appellant’s supervisor instructed the DLSE Attendance Reporting Officer in the Long Beach Office to tell appellant to bring in substantiating doctor’s notes either “as soon as possible” or “immediately.” The Attendance Reporting Officer testified that at some point during this period, she did instruct appellant at least three times to fax the required substantiation and she told the appellant, “[the supervisor] wanted it faxed now.”
Although appellant had the September 27 note from her family practice physician substantiating her absence from September 21 through September 28, appellant did not forward this information to DIR. Instead, she continued to contact her workers’ compensation doctor’s office. On September 28, she faxed her family practice physician’s request for neurological evaluation to her workers’ compensation doctor and reminded him she was missing work. On or about this date, she also asked the receptionist in her workers’ compensation doctor’s office to send a “disability letter” to her employer. Appellant had previously asked that such notes be forwarded to her employer and her workers’ compensation doctor complied with this request. However, during the relevant period, the workers’ compensation doctor’s office was in a state of flux. He was hiring new front office staff and there was personnel turnover. Although the receptionist relayed appellant’s message to the workers’ compensation doctor on or about September 29, no information was sent to the DIR.
Appellant’s supervisor testified that on September 29, he personally instructed appellant to bring in a substantiating doctor’s note either “as soon as possible” or “immediately.” During the September 29 conversation, appellant reminded her supervisor she had a medical appointment on October 1 that was related to her work injury.
Appellant did not receive a paycheck on September 30 so she called DIR’s headquarters Personnel Specialist who processes payroll. The Personnel Specialist told appellant she needed to provide substantiation of her absence that verified it was to be paid as IDL.
On October 1, appellant again called her workers’ compensation doctor’s office and this time spoke to an employee who normally handled the office’s accounting functions but who was now also working in the front office because no one else was available.
Appellant again requested a note be sent to appellant’s supervisor substantiating her work-related illness and need to be absent. Appellant also got an appointment for October 6. Appellant’s workers’ compensation doctor did not send appellant’s supervisor medical substantiation for appellant’s absence.
When appellant received the October 4 letter from respondent on October 6, she immediately contacted both DIR’s Personnel Analyst and her supervisor. She reported she was either on her way to the doctor’s office or at the office and that she would get a substantiating note sent to respondent. Both the Personnel Analyst and appellant’s supervisor told appellant that it was urgent she provide the required substantiation. When appellant saw her workers’ compensation doctor on October 6, she told him she had received a letter and needed him to send substantiation to her employer verifying her absence “right away.” After appellant saw the workers’ compensation doctor on October 6, she provided the receptionist with her supervisor’s name and fax number so the receptionist could transmit the workers’ compensation doctor’s substantiating letter to her supervisor. Appellant asked the receptionist to get the substantiating document immediately and to give her a copy, but the receptionist indicated another patient was already being seen and she would “take care of it.” Appellant stressed it was important that the information be sent to her supervisor. Appellant’s supervisor did not receive the medical substantiation from the workers’ compensation doctor on that day or on October 7. Appellant’s supervisor checked with DIR’s SCIF liaison to see if SCIF had sent information to DIR verifying appellant’s need to be absent because of her work injury. DIR’s liaison told appellant’s supervisor DIR had not received such information.
Respondent notified appellant by letter she was being automatically resigned on October 8. Appellant received the notice on Saturday, October 9. Monday, October 11 was a State holiday and her workers’ compensation doctor was not in his office. Appellant went to the workers’ compensation doctor’s office on October 12. She asked him why he had not sent the information to DIR as requested. The workers’ compensation doctor indicated he had been sending information to SCIF. On that day, the workers’ compensation doctor wrote and faxed information to both appellant’s supervisor and the SCIF Claims Adjuster. The information he faxed to appellant’s supervisor was copies of reports he had previously sent to SCIF that indicated appellant could work with restrictions. He provided no additional information that substantiated appellant’s absence. In the letter the workers’ compensation doctor faxed to the SCIF Claims Adjuster, he vented his frustration about how appellant’s case had been “mismanaged” and about the quality of communication between SCIF and his office and he clearly indicated appellant had been TTD since September 16. SCIF notified DIR of appellant’s approved TTD status for September 16 through October 8 after it received this October 12 communication. By this time, appellant had already been automatically resigned.
V - READY, ABLE AND WILLING
The parties stipulated appellant is ready, able, and willing to return to work.
* * * * *
PURSUANT TO THE FOREGOING FINDINGS OF FACT THE ALJ MAKES THE FOLLOWING DETERMINATION OF ISSUES:
Government Code section 19996.2 provides an automatically separated employee with the right to file an appeal for reinstatement with the DPA. Section 19996.2 also provides:
“Reinstatement may be granted only if the employee makes a satisfactory explanation to the department [DPA] as to the cause of his or her absence and his or her failure to obtain leave therefor, and the department finds that he or she is ready, able, and willing to resume the discharge of the duties of his or her position or, if not, that he or she has obtained the consent of his or her appointing power to a leave of absence to commence upon reinstatement.”
Pursuant to Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, the Court held that an employee terminated under the automatic resignation provision of Section 19996.2, has a right to a hearing to examine whether she had a valid excuse for being absent, whether she had a valid reason for not obtaining leave and whether she is ready, able, and willing to return to work. DPA is not charged with examining whether the appointing power acted properly with regards to the actual termination. Further, appellant has the burden of proof in these matters and must prove by a preponderance of the evidence that she had a valid excuse for her absence and failure to obtain leave and that she is currently able to return to work. In this case the parties stipulated appellant had a valid reason for being absent and that she is ready, willing, and able to return to work.
Appellant proved she had a valid reason for not obtaining leave. Although it is troublesome that appellant did not provide respondent with her family practice physician’s September 27 medical verification that she had been taken off work since September 21, appellant did not blatantly ignore respondent’s instructions to provide medical substantiation and she took other steps she believed would result in respondent receiving timely information. Appellant consistently contacted the workers’ compensation doctor’s office for an appointment. She asked the workers’ compensation doctor and/or his office staff to forward substantiating medical information to her employer on at least three different occasions beginning on at least September 28. Both her family practice physician and appellant suspected her vertigo may be related to medication appellant was taking for her work injury. Medical disability relating to such an injury must be substantiated through appellant’s designated treating physician in order for the treatment and missed time to be authorized under the workers’ compensation system. (Labor Code section 4016.5 and Title 8, CCR section 9785.) Appellant reasonably relied on the workers’ compensation doctor, her designated treating workers’ compensation physician, to provide this information directly to her employer. He had done so in the past and respondent had accepted such information in the past. There was no evidence appellant knew the workers’ compensation doctor had changed his policy and would only provide reports to SCIF and not to her employer. The workers’ compensation doctor was adamant in his testimony that he believed he fulfilled his legal obligation by providing medical information only to SCIF. He was loathe to provide information separately to DIR. The changing personnel and turnover in the workers’ compensation doctor’s office also contributed to appellant’s difficulty in getting the workers’ compensation doctor to communicate with respondent. Appellant reasonably relied on the workers’ compensation doctor to provide timely medical substantiation for her absence to DIR.
Appellant also reasonably relied on DPA Rules 599.755 and 599.758, Title 8, CCR section 9785 and respondent’s past practice and relationship with SCIF to ensure that her medical disability status was communicated to DIR. Under these rules, SCIF is charged with certifying an injured worker’s disability status. In order to do this, SCIF must receive appropriate medical information. Title 8, CCR section 9785 requires the treating physician to report a change in an employee’s condition or treatment to the claims administrator. The workers’ compensation doctor reported appellant’s condition to SCIF. SCIF contacted the workers’ compensation doctor prior to September 24 and learned that he considered appellant TTD. SCIF did not follow its usual and customary practice of communicating this to respondent. If SCIF would have notified DIR of the workers’ compensation doctor’s finding, respondent would have known that appellant’s primary treating physician had provided the medical substantiation DIR demanded. Even though SCIF required additional clarifying information, DIR would have been put on notice that there was preliminary information that was being investigated by their adjusting contractor. “If a claims adjuster disputes a medical determination by the primary treating physician, the dispute shall be resolved under the procedures set forth at Labor Code sections 4610, 4061 and 4062.” (Title 8, CCR section 9785 (B)(4).) When employees collecting workers’ compensation benefits refuse to provide adequate medical information or refuse to otherwise cooperate in obtaining adequate medical substantiation to determine disability status, the employee’s benefits are suspended. (Labor Code sections 4053, 4054, 4061, and 4062.) They are not automatically resigned from employment.
Moreover, the responsibility to communicate regarding appellant’s disability status is not solely SCIF’s responsibility. The DIR also shares communication responsibility. Although respondent knew appellant was still getting treatment for her work injury and knew that appellant claimed her illness was work related, respondent did not call SCIF to check appellant’s status before it automatically resigned her. According to appellant’s supervisor, he was just told SCIF had not sent any documentation. In this case, it was incumbent on DIR to make an affirmative effort to check with SCIF to ascertain if the workers’ compensation doctor had excused appellant from work for the period in question.
In addition, respondent’s argument that IDL is simply a payment made to workers injured on the job requires comment. This argument ignores Government Code sections 19870 and 19871. Section 19870 defines industrial disability leave as “temporary disability” and includes “any period in which the disability is permanent and stationary and the disabled employee is undergoing vocational rehabilitation.” Section 19871 states in relevant part, “. . . when a state officer or employee is temporarily disabled by illness or injury arising out of and in the course of state employment, he or she shall become entitled . . . To receive industrial disability leave and payments. . . .” (Emphasis added.) Thus, IDL is both a leave and payment benefit.
There is no specific statute or regulation that precludes the State employer from requiring an injured worker under the workers’ compensation system to provide medical substantiation directly to the employer. In this case appellant made multiple efforts to do so. There were ambiguous instructions from the employer as to the exact date appellant had to submit such substantiation. There was a lack of communication between SCIF, the treating physician, and the DIR. The treating physician supplied ambiguous medical information and ignored appellant’s repeated requests to provide specific medical substantiation for her absence to her employer even though he had provided such information in the past. Although appellant did not personally carry the requested information to her employer and did not provide a medical report in her possession that excused her from work, these indiscretions are outweighed by her efforts to provide such information and the complications caused by the workers’ compensation system and the parties involved in providing, obtaining, certifying, and communicating appellant’s disability status. Appellant had a valid reason for not obtaining leave.
* * * * *
WHEREFORE IT IS DETERMINED
that the appeal for reinstatement after automatic resignation effective October 18, 2004, is granted. Respondent is to reinstate appellant to her position within three weeks of receipt of this decision. Pursuant to Government Code section 19996.2, appellant is to be reinstated without back pay.
* * * * *
All dates are 2004 unless otherwise indicated.
As a State department, DIR is self insured. DIR has a contract with SCIF to adjust its workers’ compensation claims. This includes approving medical testing and treatment to diagnose and to cure or alleviate the effects of the work-related injury. Pursuant to Title 2, California Code of Regulations(CCR), sections 599.755 and 599.758 (DPA Rules 599.755 and 599.758), SCIF is also charged with determining if there is “an appropriate medical determination” to allow it to certify disability and thus make an injured State worker eligible to collect industrial disability leave (IDL).
See Labor Code sections 4601, 4602, and 4061.5 and Title 8, CCR § 9785 which authorize a designated physician and set forth his/her duties.
Respondent objected to appellant’s Exhibit A, an interoffice memorandum dated September 29 documenting appellant’s request that a letter be sent to her employer on the grounds it was hearsay. Government Code section 11513 (d) states: “Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objections in civil actions.” This document supplement’s appellant’s testimony that she requested a doctor’s note be sent to her employer.
Respondent objected to appellant’s Exhibits JJ and LL, two documents listing appellant’s cell phone activity including September 24 and October 1 on the ground they were hearsay. These exhibits substantiate appellant’s testimony she called the workers’ compensation doctor’s office on the respective dates.
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