ATTACHMENT A

THE PROPOSED DECISION

ATTACHMENT A

BEFORE THE

BOARD OF ADMINISTRATION

CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM

STATE OF CALIFORNIA

In the Matter of the Application for DisabilityRetirement of:

NICK MONTOYA,

and

Respondent,

AVENAL STATE PRISON, CALIFORNIADEPARTMENT OF CORRECTIONS AND

REHABILITATION,

Respondent.

Case No. 2016-1206

OAH No. 2017010544

PROPOSED DECISION

This matter was heard before Administrative Law Judge (ALJ) John E. DeCure,Office of Administrative Hearings (OAH), State of California, on May 23,2017, in Fresno,California.

Charles Glauberman, Senior Staff Attorney, represented the California PublicEmployees* Retirement System (CalPERS).

Nick Montoya (respondent) was present at the hearing and represented himself.

There was no appearance by or on behalf of Avcnal State Prison, CaliforniaDepartment of Corrections and Rehabilitation (CDCR). CalPERS established that CDCRwas properly served with the Notice of Hearing. Consequently, this matter proceeded as adefault hearing against CDCR under Government Code section 11520.

Evidence was received, argument was heard, the record was closed and the matterwas submitted for decision on May 23, 2017.

PUBLIC EMPLOYEES REnREMEhTT SYSTEM

FILED JUM 2^ ., 20

ISSUE

On the basis of an internal (lung, joint pain, fatigue, and low level platelet) condition,is respondent permanently incapacitated for the performance of his usual duties as a LeadGroundskeeper?

FACTUAL FINDINGS

1. Respondent is 60 years old. He worked as a Groundskeeper employed byCDCR, and his last position held was as a Lead Groundskeeper. On October 1, 2014,respondent submitted an application to CalPERS for service pending disability retirement.Respondent retired for service effective October 15, 2014, and has been receiving his serviceretirement allowance since that date.

Respondent's Disability Retirement Application

2. On October 1,2014, respondent submitted a Disability Retirement ElectionApplication (Application) to CalPERS. The Application identified the application t>'pe as"Service Pending Disability Retirement." In the Application, respondent's disability wasdescribed as; "(Valley Fever) golf ball size mass on right lung and permanent scarring,severe joint pain, whole body fatigue, labor[ed] breathing, low level of blood platelets."

3. The Application identified the date respondent's disability occurred asDecember 3, 2013. In response to the question asking how the disability occurred, theApplication stated: "due to the Valley Fever spore as [a] result of ambient dust that isfrequently present at Avenal State Prison."

4. The Application described respondent's "limitations/preclusions" due to hisinjuries as: "Avoid environments where dust is frequently present in the air and anyexcessive physical activity which could create labor[ed] breathing."

5. In response to the question asking how respondent's injury affected his abilityto perform his job. the Application stated: "Due to my physical condition and physicalrestrictions, 1 am no longer able to perform the essential functions of my job."

6. The Application indicated that respondent was not working in any capacity. Inthe space provided for "other information," the following information was included:

Due to my condition. 1 have been advised by my treatingphysician that 1 am no longer fit to perform my usual andcustom[a]ry duties.

7. On May 8,2015, CalPERS notified respondent in writing that his applicationfor disability retirement had been denied, and informed him of his right to appeal.

Respondent timely appealed from CalPERS' denial. All jurisdictional requirements havebeen met.

Duties ofa Lead Groimdskeeper

8. As set forth in the CDCR's Duty Statement, the Lead Groundskeeper:

supervises and works with inmates engaged in the planting,cultivating, irrigating and maintaining [of] lawns, trees, shrubs,hedges, flowers... and various ground covers. Under direction,applies pesticides, calculates irrigation schedules, performserosion control and weed abatement. Maintains and repairsroadways.

9. The Duty Statement further provides that the Patrol Agent II Supervisorperforms the following duties: (1) supervises and works with inmates in the maintenance ofinstitutional grounds, landscape, and roadways; (2) removes trash, green waste, and debrisdaily; (3) maintains grounds free of pests and disease; (4) prunes trees and shrubs; (5) makesminor irrigation-system repairs; (6) maintains and does minor repairs of gardeningequipment; (7) maintains supply and materials for upkeep of grounds; (8) trains inmateequipment operators and issues tools to inmates; (9) justifies new equipment purchases andassists in making project estimates; (10) maintains inmate timekeeping and other records;(II) follows tool and key-control procedures; (12) ensures compliance with safe practices;(13) ensures compliance with security procedures, maintains order, prevents escapes andmaintains work-area security; (14) conducts contraband searches; (15) ensures properhazardous materials storage and handling; and (16) completes eight hours of in-servicetraining (1ST) and 32 hours of on-the-job training (OTJ) annually.

10. Respondent's employer submitted a CalPERS Physical Requirements ofPosition/Occupational Title form containing information regarding the physical requirementsof the Lead Groundskeeper position. The requirements described include: never beingrequired to run, use a keyboard or mouse, lift 100-plus pounds, or work with biohazards; upto three hours of sitting, crawling, kneeling, climbing, squatting, fine manipulation, andlifting 76 to 100 pounds; from three to six hours of working at heights and using specialvisual or auditory protective equipment; over six hours of standing, walking, squatting,reaching above and below the shoulder, power grasping, simple grasping, bending the neckand waist, twisting the neck and waist, reaching above and below the shoulder, pushing andpulling, walking on uneven ground, driving, working with heavy equipment, exposure toexcessive noise, exposure to extreme temperatures/humidity/wetness, exposure todust/gas/chemicals, operation of foot controls, and lifting and carrying from zero to 75pounds.

Testimony from Respondent

11. When respondent began working at Avenal prison, he took a physical and wasfound to be in very good health. He loved his work and felt he could do anything the jobrequired of him. He contracted the disease known as valley fever from breathing spores thatcarry the fungus which causes the disease. He was particularly susceptible to the diseasebecause he is of Native American heritage, and he worked with the Central Valley soil daily,which is the most common way to breathe in the fungus.' He knew nothing about valleyfever or whether he could contract it from his employment until after he became sick. Hisoverall health worsened, his joints were chronically aching and in pain, and he suffered fromshortness of breath. He was treated by Dennis Miller, D.O., who diagnosed him with valleyfever with wheezing, shortness of breath, and cough. Dr. Miller recommended he not returnto Avenal prison because respondent was still suffering from shortness of breath, joint painand fatigue. Respondent was "scared" by his physician's opinion and chose to retire.Respondent's valley fever may be gone, but the complications it caused are still with him,and his overall health has deteriorated.

Expert Opinion

12. CalPERS called Samuel Rush, M.D., as its expert witness. Dr. Rush is board-certified in internal medicine and has been in private practice in Clovis, California, since1974. He treats patients in a general intemal medicine practice which includes adult familypractice, noninvasive cardiology, and disability evaluation reports for the state of California.Dr. Rush examined respondent on April 8,2015, took a history, reviewed his medical recordsand job duties, and issued an Independent Medical Examination (IME) report. In his IMEreport. Dr. Rush reviewed the history of respondent's valley fever and subsequent treatment.He reviewed respondent's job demands. He interviewed respondent, who stated that inNovember 2013, he developed a flu-like illness that persisted. His symptoms includedcoughing and shortness of breath. Upon examination he was found to have a right lower-lung mass which evidenced coccidioidomycosis (i.e., valley fever). Over the next sevenmonths he was treated with fluconazole, an antifungal medication, and the mass reduced tothe size of a small nodule. His shortness of breath and flu-like symptoms also resolved.Respondent felt he contracted the valley fever at work because that site is known for valleyfever dust and spores, and he was reluctant to return to that location for that reason. He wascurrently still receiving follow-up medical care, but he was not being treated for valley fever.

13. Upon physical examination. Dr. Rush listened to respondent's lungs with astethoscope, heard no sounds of rales or rhonchi, and determined they were clear. There wasno chest wall tenderness, and no shortness of breath. Range of motion in respondent'smusculoskelelal system- including the cervical, shoulder, elbow, wrist, hand, dorsolumbar,leg, hip, knee, and ankle joints- was tested and found to be within normal limits. A

' CalPERS' expert, Samuel Rush, M.D., corroborated respondent's description ofvalley fever when he testified. ,

neurological examination for motor strength, sensory perception, reflexes, and cranial nervesled to normal findings. Respondent's coordination and gait, and hand and flnger movementswere found to be normal. Dr. Rush tested and observed other systems, including the eyes,ears, nose, throat, neck, abdomen, cardiovascular, and extremities, with unremarkable results.

14. Dr. Rush testified that his review of records revealed that respondent isburdened with other health conditions unrelated to valley fever. Respondent had shouldersurgery, which resolved, leaving a healed scar. He had a hernia, which also resolved, and Dr.Rush saw no present signs of hernia upon examination. Respondent suffers fromhypertension, as evidenced by his blood pressure reading of 150/90. He also suffers from ahypothyroid condition, and his cholesterol is higher than normal. He has a history ofidiopathic thrombocytopenic purpura (ITP), a disorder that can lead to easy or excessivebruising and bleeding, although there is no evidence that ITP is presently a clinical problemfor respondent. Respondent is a smoker, but there is no evidence of resulting end organdamage.

15. After examining respondent. Dr. Rush diagnosed him as follows:

1. Coccidioidomycosis improved and currently offtreatment for a while without any evidence of recurrence.He is relatively asymptomatic. He does not get short ofbreath at rest. His lungs are clear today and reportedlythe long nodule has shrunk considerably.

2. Postoperative hernia repair with good results. Nodefinite hernia could be palpated at this time.

3. Hypertension still borderline elevated at this time. Noevidence of end organ damage.

4. History of high cholesterol current status unknown.

5. Hypothyroid on thyroid replacement.

6. Smoker. No evidence of end organ damage from thesmoking.

7. History of idiopathic thrombocytopenic purpura (ITP)currently not a clinical problem at this time. There is noevidence of unusual bleeding and platelet counts werenever reported to be under 100,000."

" Dr. Rush testified that bleeding is generally not a problem when the patient'splatelet counts are over 50,000.

16. In his IME report, Dr. Rush opined that respondent, as a Native American, wasmore susceptible to valley fever, and his employment placed him in a high-risk area forvalley fever; but respondent recovered from the episode "and is probably immune at thistime," because people who contract valley fever frequently develop immunity after havingthe disease. In Dr. Rush's opinion, respondent "seems able at this time to perform accordingto his job description." For these reasons. Dr. Rush concluded that respondent was notsubstantially incapacitated from performance of his job duties.

17. Dr. Rush submitted a supplemental report, dated July 30,2015, in which hedetailed his review of additional documentation, including a written response fromrespondent to Dr. Rush's original IME report, and a progress report from a worker'scompensation physician, which was mostly illegible but which revealed respondent had 96percent oxygen saturation, a normal, good result. Dr. Rush also reviewed an Agreed MedicalEvaluation (AME) report from Timothy Reynolds, M.D., dated March 12, 2015, in which Dr.Reynolds opined that respondent was temporarily partially disabled due to chronicobstructive pulmonary disease (COPD), reactive airway disease, and chronic fatigue, butmentioned that respondent's valley fever and chronic abdominal wall pain required notemporary work restrictions. Dr. Rush was further provided with a Daily LivingQuestionnaire respondent completed in which he felt he was limited in certain physicalactivities, including stair-climbing and walking over one mile. A pulmonary function testreport showed possible mild restrictive lung disease and no significant obstructive airwaydisease. None of the documentation or information provided changed Dr. Rush's originalopinion and recommendations.

18. Dr. Rush submitted a second supplemental report, dated August 26, 2016, inwhich he reviewed additional records, including a September 2014 status report from CentralValley Comprehensive Care that mentioned respondent's valley fever and noted that he hadseen a lung specialist, who said he had a touch of asthma. Another record included acoccidioidomycosis serology report showing an improved antibody level. Another reportfrom Dr. Reddy, an infectious diseases specialist, offered the assessment that respondent'svalley fever improved, he was off antifungal medications, and he need only return as neededfor further care. Several other reports showed no remarkable results. A March 2015reevaluation report by Dr. Reynolds discussed a CT scan showing no recurrent abdominalhernia. Upon examination, respondent was found to be obese with high blood pressure(149/77).^ His chest was clear and he was not short of breath at rest. Dr. Reynoldsmentioned moderate restrictive lung disease and possible obstructive lung disease, which is acharacteristic of small airway disease. He also mentioned hypothyroidism andhyperlipidemia. An echocardiogram was normal, and a chest x-ray showed no disease. Dr.Reynolds believed respondent was temporarily partially disabled in that his COPD andreactive airway disease precluded him from heav>' work, but his history of valley feverrequired no temporary work restrictions. Dr. Rush reviewed further primary treating

^ A systolic (top number) blood pressure reading of between 140 and 159 indicatesstage 1 hypertension.

physician reports that mentioned COPD and valley fever, and a Sleepiness Scale by Dr.Reynolds showing respondent had a chance of dozing off. A January 2016 worker'scompensation primary treating physician report mentioned COPD with shortness of breathfrom the valley fever. Other reports mentioned tightness in the chest and vague descriptionsof shortness of breath. None of the documentation or information provided changed Dr.Rush's original opinion and recommendations. Dr. Rush did note, however, that there are"still some questions, as there have been in the past, about how much COPD and reactiveairway disease [respondent] has."

19. Dr. Rush submitted a third supplemental report, dated September 16, 2016, inwhich he reviewed additional records, including a January 2016 report from the GoodnightSleep Center, which found respondent to have sleep apnea of moderate severity, and periodiclimb-movement disorder, and which recommended respondent wear a continuous positiveairway pressure therapy (CPAP) mask. Dr. Rush also reviewed a July 2016 supplementalreport from Dr. Reynolds which detailed pulmonary function testing resulting in findings ofmild restrictive defect and mild obstructive small airway disease. Respondent's valley feverwas noted to have stabilized, as he tested negative for active coccidioidomycosis. Hisrespiratory condition was restrictive due to obesity. The COPD occurred with a 34-yearhistory of cigarette smoking, although pulmonary testing did not show significant COPD.None of the documentation or information provided changed Dr. Rush's original opinion andrecommendations.

Other Medical Reports

20. At the hearing, respondent submitted additional documents and medicalrecords, which were admitted as administrative hearsay and have been considered to theextent permitted under Government Code section 11513, subdivision (d).'*

21. On March 12, 2015, Dr. Reynolds completed a report based upon an AgreedMedical Examination on behalf of respondent. The details of that report are set forth abovein Finding 18.

22. On July 15, 2015, Dr. Miller submitted a letter "to whom it may concern" inwhich he opined that respondent's valley fever, COPD, and reactive airway disease wascaused by, and exacerbated by, respondent's exposure to his place of employment.

23. On March 8,2017, Dr. Miller submitted a letter "to whom it may concern" inwhich he opined that respondent's respiratory status, clinical examination (by Dr. Reynolds),

Government Code section 11513, subdivision (d), in relevant part provides:

Hearsay evidence may be used for the purpose of supplementingor explaining other evidence but over timely objection shall notbe sufficient in itself to support a finding unless it would beadmissible over objection in civil actions.

and the health hazards presented by his workplace should preclude respondent from returningto work.

24. On November 18,2016, Dr. Reynolds completed a report based upon an AMEon behalf of respondent, in which Dr. Reynolds opined that respondent's COPD andrestrictive ventilatory impairment limit him to semi-sedentary work and preclude him fromexposure to respiratory irritants. Dr. Reynolds estimated that approximately 20 percent ofrespondent's sleep disorder was found to be caused by his employment with CDCR, andapproximately 80 percent was caused by other factors.

Discussion

25. When all the evidence is considered, respondent failed to offer sufficientcompetent medical evidence to establish that, at the time he applied for disability retirement,he was substantially and permanently incapacitated from performing the usual duties of aLead Groundskeeper. The medical evidence established that he recovered from his valleyfever. According to Dr. Rush's testimony, which was undisputed, once a person recoversfrom valley fever, typically he or she is thereafter immune from the disease. There is noevidence to suggest that respondent still suffers from valley fever; in July 2016, he testednegative for the disease when he was evaluated by Dr. Reynolds. When respondent wasphysically exeimined by Dr. Rush, he exhibited no further symptoms of the disease, includingshortness of breath. His lungs were clear. Dr. Rush's review of the medical recordsconfirmed that respondent's medical treatment to date for valley fever was appropriate andeffective.

26. The medical reports that were admitted as administrative hearsay did notsupport a finding that respondent is substantially and permanently incapacitated fromperforming the usual duties of a Lead Groundskeeper. To the extent the doctors whoauthored those reports applied evaluation standards applicable in workers' compensationcases, their opinions can be given little weight in this proceeding. The standards in disabilityretirement cases are different from those in workers' compensation. (Bianchi v. City of SanDiego (1989) 214 Cal.App.3d 563, 567; Kimbrough v. Police & Fire Retirement System(1984) 161 Cal.App.3d 1143,1152-1153; Summerford v. Board of Retirement (1977) 72Cal.App.3d 128, 132 [a workers' compensation ruling is not binding on the issue ofeligibility for disability retirement because the focus of the issues and the parties aredifferent].) For example, the objective findings in Dr. Reynolds' agreed medical evaluationssummarized above were insufficient to support that respondent is substantially andpermanently incapacitated from performing the usual duties of a Lead Groundskeeper.

27. In contrast, Dr. Rush, in reaching his opinion that respondent was notsubstantially and permanently incapacitated from performing the usual duties of a LeadGroundskeeper, employed the standards applicable in these types of disability retirementproceedings. His opinion that respondent's objective medical evidence did not support afinding that respondent was substantially incapacitated was persuasive and consistent withthe medical records offered at hearing.

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28. Respondent did not offer any competent medical expert testimony at hearingto support his contentions. Neither Dr. Reynolds nor Dr. Miller testified. No treatingphysicians testified on respondent's behalf. Although respondent credibly complained of hisdeteriorating health, he did not offer persuasive medical opinion that he is substantiallyincapacitated from the performance of his usual duties as a Lead Groundskeeper.

29. In sum, when all the evidence is considered, respondent failed to establish thatat the time he applied for disability retirement, he was substantially and permanentlyincapacitated from performing the usual duties of a Lead Groundskeeper. Consequently, hisdisability retirement application must be denied.

LEGAL CONCLUSIONS

1. By virtue of his employment, respondent is a state safety member of CalPERS,pursuant to Government Code section 21151.

2. To qualify for disability retirement, respondent had to prove that, at the timehe applied, he was "incapacitated physically or mentally for the performance of his duties inthe state service." (Gov. Code, § 21156.) As defined in Government Code section 20026,

"Disability" and "incapacity for performance of duty" as a basisof retirement, mean disability of permanent or extended anduncertain duration, as determined by the board ... on the basisof competent medical opinion.

3. The determination of whether respondent is substantially incapacitated mustbe based on an evaluation of whether, at the time he applied for disability retirement, he wasable to perform the usual duties of a Lead Groundskeeper. {California Department of JusticeV. Board of Administration of California Public Employees' Retirement System {Resendez)(2015)242 Cal.App.4th 133, 139.)

4. In Mansperger v. Public Employees' Retirement System (1970) 6 Cal.App.3d873, 876, the court interpreted the term "incapacity for performance of duty" as used inGovernment Code section 20026 (formerly section 21022) to mean "the substantial inabilityof the applicant to perform his usual duties." (Italics in original.)

The employee in Mansperger was a game warden with peace officer status. Hisduties included patrolling specified areas to prevent violations and apprehend violators,issuing warnings and serving citations, and serving warrants and making arrests. He sufferedan injury to his right arm while arresting a suspect. He could shoot a gun, drive a car, swim,row a boat (with some difficulty), pick up a bucket of clams, pilot a boat, and apprehend aprisoner (with some difficulty). He could not lift heavy weights or carry a prisoner away.The court noted that "although the need for physical arrests do occur in petitioner's job, theyare not a common occurrence for a fish and game warden." {Mansperger, supra, 6

Cal.App.3d at p. 877.) Similarly, the need for him to lift a heavy object alone wasdetermined to be a remote occurrence. {Ibid.) In holding that the game warden was notincapacitated for the performance of his duties, the Mansperger court noted that the activitieshe was unable to perform were not common occurrences and that he could otherwise"substantially carry out the normal duties of a fish and game warden," {Id. at p. 876.)

5. The court in Hosford v. Board of Administration (1978) 77 Cal.App.3d 855,reached a similar conclusion with respect to a state traffic sergeant employed by the CHP.The applicant in Hosford had suffered injuries to his left ankle and knee, and had strained hisback. The court noted that the sergeant "could sit for long periods of time but it would'probably bother his back;' that he could run but not very adequately and that he wouldprobably limp if he had to run because he had a bad ankle; that he could apprehend personsescaping on foot over rough terrain or around and over obstacles but he would have difficult>'and he might hurt his back; and that he could make physical effort from the sedentary statebut he would have to limber up a bit." {Id. at p. 862.) Following Mansperger, the court inHosford found that the sergeant:

is not disabled unless he is substantially unable to perform theusual duties of the job. The fact that sitting for long periods oftime in a patrol car would "probably hurt his back," does notmean that in fact he cannot so sit;.. .[t] As for the morestrenuous activities, [a doctor] testified that Hosford could run,and could apprehend a person escaping over rough terrain.Physical abilities differ, even for officers without previousinjuries. The rarity of the necessity for such strenuous activity,coupled with the fact that Hosford could actually perform thefunction, renders [the doctor's conclusion that Hosford was notdisabled] well within reason. {Ibid.)

In Hosford, the sergeant argued that his condition increased his chances for furtherinjury. The court rejected this argument, explaining that "this assertion does little more thandemonstrate that his claimed disability is only prospective (and speculative), not presentlyexisting." {Hosford, supra, 77 Cal.App.3d at p. 863.) As the court explained, prophylacticrestrictions that are imposed to prevent the risk of future injury or harm are not sufficient tosupport a finding of disability; a disability must be currently existing and not prospective innature. {Ibid.)

6. In Harmon v. Board of Retirement (1976) 62 Cal.App.3d 689, 697, the courtdetermined that a deputy sheriff was not permanently incapacitated for the performance ofhis duties, finding, "A review of the physician's reports reflects that aside for a demonstrablemild degenerative change of the lower lumbar spine at the L-5 level, the diagnosis andprognosis for the appellant's condition are dependent on his subjective symptoms."

7. When all the evidence in this matter is considered in light of the courts*holdings in Resendez, Mansperger. Hosford, and Harmon, respondent did not establish that

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his disability retirement application should be granted. There was not sufficient evidencebased upon competent medical opinion that he is permanently and substantially incapacitatedfrom performing the usual duties of a Lead Groundskeeper. In fact, respondent offered notestimony either from his treating doctors or from a medical expert. Consequently, hisdisability retirement application must be denied.

ORDER

The application of respondent Nick Montoya for disability retirement is denied.

DATED: June 20, 2017

C—OoeuSigncdby:-I7FO47F60F0S43E.

JOHN E. DeCURE

Administrative Law JudgeOffice of Administrative Hearings

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