DPA Case Number 04-F-0088 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: December 6, 2004

By: Michael T. Navarro, Director

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on October 25, 2004, at Sacramento, California.

Appellant was present and was represented by Steven B. Bassoff, Attorney.

Vanessa G. Rose, Chief Counsel, represented the Stephen P. Teale Data Center (TEALE), respondent.

Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.

Respondent notified appellant on July 29, 2004 that she was being automatically resigned for being absent without approved leave from April 16, 2004 to July 29, 2004.1 Appellant filed a request (appeal) for reinstatement after automatic resignation on August 13. The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant argued respondent illegally invoked the automatic resignation statute in violation of Government Code sections 19863 and 19874 and Section 9.17 of the Collective Bargaining Agreement (CBA) for Bargaining Unit 1 in effect for the period of July 3, 2003 through June 30, 2005. Government Code section 19863 authorizes the use of accumulated compensable overtime, vacation or annual leave to supplement temporary disability payments for an injured employee unless the appointing power is otherwise notified by the injured employee. It also provides that such employees shall be entitled to receive other disability indemnity including temporary disability benefits when overtime, vacation, and annual leave is exhausted consistent with Government Code section 19869.

Government Code section 19874 provides that if an employee continues to be temporarily disabled after the termination of Industrial Disability Leave (IDL), he/she is entitled to receive specific benefits under the Labor Code and payments under Government Code section 19863.

Both Government Code sections are incorporated into Section 9.17 of the Bargaining Unit 1 CBA.

Appellant also argued she had a valid reason for being absent because she was incapacitated with a work-related injury. She alleged she had a valid reason for not obtaining leave because she believed her absences fell under the auspices of the workers’ compensation system and no one informed her she was no longer eligible for temporary disability benefits and therefore on unauthorized leave. Appellant also contended she was ready, able and willing to return to work with reasonable accommodation, i.e. she is allowed to work at home.

Appellant sustained a work-related injury beginning December 2002. She has not reported to work since March 10, 2003. She suffers from bi-lateral carpel tunnel syndrome. Appellant obtained treatment from a chiropractor and consulted with a surgeon during her time off work. Appellant’s treating chiropractor and surgeon agree she is a surgical candidate. Appellant is scheduled for surgery on December 8. Appellant presented an August 4 note from her treating chiropractor indicating she had been totally temporarily disabled since her injury. Appellant had a valid reason for being absent.

Appellant argued she did not need to obtain leave because she was absent as a result of a work-related injury for which she was receiving payments through the workers’ compensation system. She argued that respondent’s failure to keep her apprised of the need for medical information and her leave status resulted in her failure to provide updated medical information. Appellant also testified she believed she had provided sufficient medical verification of her need to be absent based on an October 14, 2003 note from her surgeon saying resolution of her carpal tunnel symptoms “may take a few months.” Appellant further testified she believed she had sufficient authorization to be absent because her worker’s compensation insurance claims adjuster informed her that her IDL would extend into March 2005. The claims adjuster was not called to testify.

The Associate Personnel Analyst testified that respondent and the State Compensation Insurance Fund (SCIF), respondent’s workers’ compensation insurance carrier, worked together to process appellant’s leave, IDL payments, and temporary total disability (TTD) payments through April 15. The Associate Personnel Analyst testified that when employees indicated they wanted to receive IDL payments, she would compare the employee’s attendance reports (“634’s”) with medical authorizations and she would submit the IDL requests to SCIF. SCIF would then approve the time off based on the medical substantiation.

Throughout appellant’s absence for her work-related injury, respondent worked with both appellant and her doctor to obtain medical verification of appellant’s time off. Prior to March, the Associate Personnel Analyst contacted the chiropractor’s office directly to obtain approval for appellant’s continuing leave. After the Associate Personnel Analyst went on leave in March, a Personnel Analyst also contacted the chiropractor’s office directly to obtain required medical verification. On March 17, the chiropractor’s office faxed the Personnel Analyst verification of appellant’s disability through April 15. On March 30, the Personnel Analyst called the chiropractor’s office again. On April 6, the Personnel Analyst sent the chiropractor a letter asking for an update on appellant’s condition and work status. The Personnel Analyst contacted the chiropractor’s office again on April 29, May 3, May 4, and May 18. In spite of the Personnel Analyst’s efforts, the chiropractor did not provide respondent or SCIF with medical verification of appellant’s continuing total temporary disability until on or about August 4, after appellant had been automatically resigned. Hearsay testimony by the Personnel Analyst indicated the chiropractor’s office intended to provide information to respondent after appellant was examined. Apparently, appellant had not kept several appointments with the Personnel Analyst and, at the time of her automatic resignation, had not yet decided whether or not she wanted surgery to correct her condition. However, no finding is based on the Personnel Analyst’s conversations with the chiropractor’s office staff. The doctor was not called to testify and appellant objected to such hearsay testimony (Government Code section 11513). Therefore, for whatever reason, the fact remains the last report from the chiropractor before appellant was automatically resigned indicated appellant would be able to return to work on April 15.

At various times throughout appellant’s absence for her work-related injury, respondent also contacted appellant to obtain medical substantiation for her absence. The Associate Personnel Analyst testified she discussed the need for updated medical information with appellant when she was handling appellant’s workers’ compensation claim from December 2002 to March. The Associate Personnel Analyst testified that she told appellant that if she wanted to use IDL, i.e. have her leave credit restored, she had to provide medical verification. The Associate Personnel Analyst further testified she told appellant that SCIF was the authority to authorize the leave, not her. In July 2003, the Associate Personnel Analyst documented at least one of her conversations with appellant regarding the need for medical substantiation. At that time, the Associate Personnel Analyst notified appellant in writing that failure to provide medical substantiation would require her to report to work or be considered absent without leave. Appellant timely submitted the required substantiation.

Appellant’s supervisor for attendance reporting testified he called appellant in early May to inquire how she wanted to use leave credits to supplement her workers’ compensation benefits. He testified that during that call, he also told her she needed to provide additional medical verification of her inability to work. The supervisor further testified appellant told him her doctor was handling this.

The supervisor also testified that on or about May 30, he left a voicemail message for appellant telling her to contact respondent regarding an updated doctor’s note. He testified appellant never returned his call. Appellant testified the supervisor never left a message. There was no evidence that after May, either SCIF or respondent contacted appellant to advise her she either needed additional medical verification that she was disabled past April 15 or that her workers’ compensation benefits were, at the very least, being suspended.

Although respondent did not have medical verification of appellant’s need to be absent, it continued to allow appellant to use her accrued leave balances in order to collect a full paycheck for the period of April 16 through July 9. Respondent believed appellant would eventually provide medical verification of her need to be absent for this period. The Associate Personnel Analyst testified appellant had always been “good” about providing medical verification. Respondent was originally unconcerned when no medical verification was immediately forthcoming. The Human Resources Manager testified it was not usual that there was a lag between one medical verification expiring and a new medical verification was received. Appellant exhausted her IDL on February 22. She exhausted her leave credits on July 9.

On July 29, respondent notified appellant she was being automatically resigned. There was no evidence SCIF notified appellant or respondent that appellant’s benefits were being discontinued or that her case was being closed. Documents provided by SCIF indicate that on or about September 1, appellant was given a check paying her TTD and a penalty for late payment for the period of February 23, 2003 through April 15.

Appellant testified she was ready, able, and willing to return to work if she was provided a reasonable accommodation which allowed her to telecommute.

Respondent disputed appellant’s ability to return to work and argued that if she were returned to work based on a telecommute status this would not be a reinstatement because she was not authorized to telecommute prior to her injury.

At the time of hearing SCIF did not offer an opinion whether or not appellant was able to return to work.

Appellant is scheduled for surgery in December. The evidence she presented from her doctor regarding her ability to be reinstated and to perform her usual and customary work without surgery or even with a reasonable accommodation is unclear.

DPA lacks jurisdiction to determine if appellant is able to return to work in this case. Such a finding is precluded by Labor Code sections 4061 and 4062 which prescribe the procedures to be followed when there are disputes about appropriate medical treatment, temporary or permanent disability, vocational rehabilitation, the disability rating or the need for continuing medical care by an employee in the workers’ compensation system. (Tenet/Centinela Hospital Medical Care v. Carolyn Rushing, (2000) 80 Cal.App 4th 1041, at p. 1048.)

Such finding by DPA would also be contrary to California Code of Regulations, Title 2 section 599.758 which states, “Upon expiration of Industrial Disability Leave benefits, State Compensation Insurance Fund shall determine whether disability continues to exist and shall further determine the disabled employees’ eligibility to receive Workers’ Compensation temporary disability benefits.” Such a decision is based on medical information addressing an injured workers’ medical ability to return to work.

At the time of appellant’s automatic resignation, she had exhausted her IDL and was eligible for TTD payments. Therefore, the determination whether this appellant is ready and able to work must be deferred to appellant’s treating physician and SCIF. If there is a disagreement in this regard, it must be resolved under the processes established in the workers’ compensation system.

DPA lacks jurisdiction to determine appellant’s medical ability to return to work in this case.

 

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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. Therefore, DPA makes no finding regarding the invocation of Government Code section 19996.2 in this case and whether or not by invoking the statute respondent violated the Bargaining Unit 1 CBA, and/or Government Code sections 19863 and 19874.

The 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.

Appellant proved she had a valid reason for being absent. She has a continuing disability as a result of her carpal tunnel as reflected in medical information finally submitted by her treating chiropractor in August.

Appellant also proved she had a valid reason for not obtaining leave. She proved she had a good faith belief consistent with the workers’ compensation system and respondent’s past practice that she would be notified if she needed to provide additional medical verification or if benefits were being stopped or changed based on medical information. (See Labor Code section 4061.) Respondent had previously either notified appellant when it lacked medical verification or worked directly with her chiropractor until it obtained the required information. Appellant had not personally provided medical verification of her absence to respondent since October 14. There was no evidence that she was even aware that the chiropractor had provided additional information to respondent on March 17 extending her disability to April 15. In this instance, when the supervisor notified appellant in early May that she needed additional medical verification, appellant told the supervisor that “her doctor was handling that.” There was no reliable evidence that appellant received any information that caused her to question her doctor’s apparent ongoing direct involvement in providing this information.

Furthermore, respondent approved appellant’s leave from April 15 through July 9 and appellant received full pay for this period based on its good faith belief that appellant was still disabled and her treating chiropractor would provide medical verification of appellant’s need to be absent for this period. While such advanced good faith payments do not incur additional financial liability for respondent in the workers’ compensation arena, such leave approval cannot be authorized and then rescinded for the purpose of supporting a finding that appellant was absent without leave.

No one made contact with appellant after July 9 to inform her that her leave was exhausted and that respondent had been unsuccessful in its usual efforts to deal directly with the doctor to obtain the required medical verification of off-work status. Once appellant was notified of the severity of her predicament on or about July 29, she immediately arranged for her chiropractor to provide the required information. This was consistent with her past response to such written notification. SCIF did not notify appellant that her temporary disability benefits terminated as of April 15 until approximately September 1. There is no evidence that SCIF ever notified either appellant or respondent that it was closing appellant’s workers’ compensation case or terminating appellant’s benefits based on her failure to comply with required medical treatment or examinations.

Although it is usually incumbent upon the employee to take responsibility for providing ongoing medical information regarding work status, this case is unique. Appellant was embroiled in the workers’ compensation system which is construed liberally on behalf of the injured worker. (Hupp v. Workers’ Compensation Appeals Board, (1995) 39 Cal.App 4th 84.) Respondent and SCIF took responsibility for communicating directly with the treating physician to determine whether appellant was able to work. Appellant had no reason to believe she was in jeopardy of losing her job because her physician failed to respond to requests from her employer to provide medical information. Thus, appellant had a valid reason for not obtaining leave.

DPA makes no finding regarding appellant’s medical ability to return to work. There is a dispute in this area which must be resolved according to the processes provided for injured workers in the workers’ compensation system. DPA lacks jurisdiction to make a determination in this area.

 

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that the appeal for reinstatement after automatic resignation effective July 29, 2004, is denied based on DPA’s lack of jurisdiction to adjudicate medical disputes involving injured employees embroiled in the workers’ compensation system.

 

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FOOTNOTES

1. All dates are 2004 unless otherwise indicated.