DPA Case Number 98-X-0039 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: May 15, 1998

By: K. William Curtis

This matter came on regularly for hearing before Mary C. Bowman, Hearing Officer, Department of Personnel Administration (DPA), at Sacramento, California, at 9:00 a.m. on

May 5, 1998.

Appellant was present and was represented by Richard E. Lehrfeld, her attorney.

Respondent, Department of California Highway Patrol (CHP), was represented by John Dunnigan, Staff Counsel.

Appellant automatically resigned from her position as a Printing Trades Specialist III (General) with the CHP effective close of business December 26, 1997. On January 14, 1998, her attorney mailed a request for reinstatement (appeal) after automatic resignation to DPA. The appeal complies with Government Code section 19996.2.

Appellant began working for the State on August 22, 1984. She was first employed by the Department of Motor Vehicles. Since that date she has worked for the Department of Motor Vehicles, the Department of Fish and Game, the California State Lottery, Office of Economic Opportunity, State Controller, the Department of Food and Agriculture and the CHP. She began working for the CHP on June 1, 1989.

Appellant was automatically resigned for being absent without approved leave from the beginning of business on December 29, 1997, through noon on January 6, 1998. Appellant requested reinstatement, claiming that she had a reasonable explanation for being off work, that she had a reasonable explanation for not obtaining leave, and that she is currently ready, able and willing to return to work.

Appellant was off work for illness and injury during a significant period of time in 1996-1997. Medical reports and visit verifications were placed in the record evidencing her illness and injuries. The parties stipulated that the reports and verifications were to be treated as direct rather than hearsay evidence. Following is a synopsis of the evidence.

Appellant was off work beginning September 26, 1996, and filed a claim with the State Compensation Insurance Fund (SCIF) for workers’ compensation benefits alleging a work-related stress injury. SCIF sent her to a medical-legal psychiatric evaluation. On November 13, 1996, the physician performed an examination; and on November 29, 1998, he issued a report concluding she had no acute psychiatric disorder.

On July 15, 1997, appellant injured her back. On August 15, 1997, she filed a workers’ compensation claim with SCIF. She was off work between August 5 and November 15, 1997. SCIF sent her to an Orthopedic Surgeon, for an examination. On September 18, 1997, the Orthopedic Surgeon performed an examination; and on October 9, 1997, he issued a report concluding she was “employable” but should have her work modified to “not lift or carry more than 15 pounds at a time” and “not do that more than four times, per hour.” He also found that she should be able to “sit or stand for up to 15 minutes at a time” and “then be able to change position to either walking, sitting or standing” and should be “restricted from bending forward so her fingertips do not come below her knees.”

Appellant returned to work briefly in mid-November 1997. She worked in a light duty assignment at the CHP Academy. Then, she was returned to a position in the Reproduction Unit. It was not clear what the nature of her duties were in Reproduction. She only stayed two hours.

Appellant’s attorney sent her to an examination with their physician. The physician examined her on November 18, 1997; and on December 1, 1997, he issued a report finding she suffered from “spondylolisthesis (preexisting the industrial injury of July 1997) and from Coccydynia which resulted in constant slight pain in the lubosacral spine with occasion moderate to moderately severe pain related to positional activities. He recommended work restrictions precluding heavy lifting and potential job modification to avoid heavy lifting,

Appellant remained off work and obtained a medical verification slip from her treating physician, dated December 9, 1997. It stated, “[appellant] is in treatment for recurrent depression. On medication. She may be able to work by January 30, 1998.” She submitted it to respondent sometime in December.

Due to conflicting medical information and the fact that appellant was still off work, on December 16, 1997, respondent ordered appellant to report for a mandatory medical evaluation to determine her fitness for duty. The examination was conducted on December 19, 1997, by a Diplomat of Psychiatry and Neurology and Diplomat of Physical Medicine and Rehabilitation. He performed both a psychiatric and a medical examination.

The Diplomat issued a preliminary diagnosis on December 19, 1997. In his report he stated appellant was not unfit for duty for any psychiatric reason. However, he recommended that she be transferred due to conflict with a supervisor. He stated she was medically fit for duty but required accommodation in the manner suggested by her physician, an Orthopedic Surgeon. The accommodations included “limiting her from lifting up to 15 pounds, no repetitive bending, or prolonged sitting.” On January 7, 1998, the Diplomat issued a full report consistent with his preliminary diagnosis of appellant.

On December 23, 1997, respondent sent appellant a letter directing her to return to work on or before Monday, December 29, 1997, based on the Diplomat’s preliminary diagnosis. In the letter, respondent advised appellant that the department sought the evaluation because of her recent history of absence and that the Diplomat concluded she was fit for duty and capable of performing the essential duties of her job as a Printing Trades Specialist III with regard to her back condition with the accommodations recommended by her treating Orthopedic Surgeon. Specifically, the letter stated, “[The Diplomat] agrees with your own physician, [name omitted], that you are cable of returning to work with restrictions.” The letter also stated, "I assure you that your supervisor will respect the lifting restrictions.”

Appellant did not return to work.

Appellant was mailed a notice of automatic separation on January 6, 1998 for her absence between December 29, 1997, and January 6, 1998.

After her automatic separation, appellant again visited her personal physician, on January 12 and January 15, 1998. She brought to the hearing two visit verification forms from her physician. According to the January 12 verification, appellant was under her physicians care “from January 12, 1998” for “lumbar sciatica/pain” and “would be able to return to work on 2-4-98.” On the second verification which he executed January 15, 1998, her physician wrote, “[appellant] was evaluated today. She is in treatment for depression with medication. She may be able to work by February 28, 1998.”

It is concluded from the above medical evidence, particularly the report of the Diplomat, that between December 29, 1997, and January 6, 1998, appellant was fit for duty and able to work with agreed upon accommodations.

Appellant’s counsel argued that appellant did not return to work and did not obtain leave because she was not provided with a copy of the Diplomat’s report and was unsure of what accommodations were recommended. However, she acknowledged that she had previously reviewed her Orthopedic Surgeon’s report, which set forth the restrictions he recommended. She also admitted she received the December 23, 1997, letter advising her to return to work on

December 29, 1997. That letter also warned that her failure to return to work for five (5) consecutive work days would result in her automatic resignation. Appellant did not report to work, did not contact her employer (respondent) and did not request additional time off at any time during the period between December 23, 1997, and her automatic separation (January 6, 1998).

Appellant did not provide a reasonable explanation for not contacting her employer after she was directed to return to work. Refusing to return to work until provided with a full medical report from the doctor did not excuse her leave reporting responsibilities.

Appellant testified that she is currently ready, able and willing to return to work. She did not provide any current medical reports or a physician’s evaluation of her current medical and/or psychiatric status.

The December 1997 orthopedic evaluation provided by the Diplomat(who relied in part on medical records provided by SCIF’s and appellant’s Orthopedic Surgeons) indicated appellant has chronic long-term back problems. He stated “These are all chronic in nature and will in all probability continue to gradually increase in the years to come.” Consistent with the Orthopedic Surgeons, he concluded that she required accommodation prohibiting carrying more than fifteen pounds more than four times per hour, repetitive bending or prolonged sitting. Additionally, the January 12, 1998, visit verification from appellant’s physician indicates that any return to work would require restrictions due to her back problems.

The December 1997 psychiatric evaluation provided by the Diplomat indicated appellant did not have a psychiatric condition rendering her unfit to work. However, he stated, “It is unlikely in my opinion that [appellant] will be able to satisfactorily reintegrate into her current work place. This is not because of a physical or psychiatric impairment but rather because of the prolonged and deep-seated interpersonal conflict between herself, her supervisors and at least one co-worker. It is not likely in my opinion that this conflict will ever be satisfactorily resolved. With this in mind, I would recommend a lateral transfer if possible to a similar position.” On January 15, 1998, appellant’s physician found that appellant was again unable to work due to depression, that she was on medication and that she “may be able to work by February 28, 1998.” Appellant did not present a work release from her physician.

The most current medical information on the record contradicts appellant’s belief that she is currently able to return to work without accommodation.

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Government Code section 19996.2 provides in relevant part,

“Reinstatement [after automatic resignation] 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 he/she had a valid excuse for being absent, whether he/she had a valid reason for not obtaining leave and whether he/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 the he/she had a valid excuse for his/her absence and failure to obtain leave and that he/she is currently able to return to work.

In this case, appellant failed to prove that she had a satisfactory reason for being absent between December 29, 1997, and January 6, 1998. The medical records of the Diplomat (which were entered by stipulation in lieu of his testimony) were very reliable evidence. They demonstrated appellant was medically fit for duty so long as she received accommodation for her back injury/illness and that she was not psychiatrically disabled in December 1997.

Appellant similarly failed to prove she had a reasonable excuse for not obtaining leave. Appellant chose to remain off work until she received a copy of the preliminary report from the Diplomat. The particular report was not made available until after a request was made through her attorney.1 She did not contact her employer any time after she was advised to return on December 29, despite warning in the letter that her failure to return would result in her being automatically separated. She also did not provide timely medical substantiation to support her additional time off from December 29, 1997, through January 6, 1998. Appointing powers must know, and are entitled to know, where their employees are, when they will be absent and when they will return to work, in order to plan for an orderly distribution and completion of work.

Finally, appellant’s claim that she is currently able to return to work is not credible in light of the medical evidence on record. In January, her personal physician placed her off work because of depression. He did not provide a firm return to work date. Also, all the medical reports relating to her back injury, including appellant’s physician January report, consistently indicate appellant needs accommodation to return to her current position.

For the reasons set forth above, it is concluded that the request for reinstatement should be denied.

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that the appeal for reinstatement after automatic resignation effective December 26, 1997, is denied.

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1. The report was stamped “This report should not be released to the applicant” consistent with psychiatric evaluations. The report was eventually released to Mr. Lehrfeld for workers’ compensation purposes.