BOARD OF ADMINISTRATION CALIFORNIA PUBLIC · PDF filediamond court reporters 1107 2nd st., suite 210 sacramento, ca 95814 916-498-9288 board of administration california public employees

DIAMOND COURT REPORTERS1107 2nd St., Suite 210Sacramento, CA 95814
916-498-9288
BOARD OF ADMINISTRATION
CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM
STATE OF CALIFORNIA
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In the matter of the Application for Industrial Disability Retirement of
-------------------------------- SHELDON K. SCARBER ) ) Respondent, ) AGENCY CASE NO. ) 2015-0243 and ) ) OAH NO. 2016050434 CALIFORNIA HIGHWAY PATROL, ) ) Respondent. ) )
CalPERS Regional Office
10 River Park Place East, Suite 230
Fresno, California 93720
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Thursday, September 15, 2016
9:00 a.m.
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Reported by: KELLI A. DIAZ, CSR No. 13930
Attachment E Administrative Hearing Transcript (9/15/2016) Page 1 of 89

DIAMOND COURT REPORTERS 916-498-9288 2
1 A P P E A R A N C E S:
2 Administrative COREN WONG Law Judge: OFFICE OF ADMINISTRATIVE HEARINGS
3 2349 GATEWAY OAKS DRIVE, SUITE 200 SACRAMENTO, CA, 95833-4231
4 (916)263-0550
5 For CalPERS: ELIZABETH YELLAND SENIOR STAFF ATTORNEY
6 CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM
7 LINCOLN PLAZA NORTH, 400 "Q" STREET SACRAMENTO, CA 95811
8 (916)795-3675
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1 I N D E X
2 Page
3 Opening Statement by Ms. Yelland 11
4 Opening Statement by Mr. Scarber 14
5 Mr. Scarber sworn 55
6 Reporter's Certificate 89
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8 Witnesses called for Mr. Scarber:
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10 SHELDON KYLE SCARBER
11 Direct Examination 57 Cross-Examination 72
12 Redirect Examination 80 Redirect Examination 85
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1 CALPERS' EXHIBITS
2 No. Description ID EV
3 1 Statement of Issues 21 21
4 2 Notice of Hearing, Notice of Assigned 22
5 Dates
6 3 Application for Industrial Disability 22 23
7 4 Application for Service Retirement 23
8 5 CalPERS correspondence, 10/31/13 Ref. 23
9 6 Denial letter 24
10 7 Letter of Appeal 24
11 8 Addendum to Appeal 24
12 9 Highway Patrol Declaration, regarding 24 27 authenticity
13 10 Notice of Adverse Action 24 28
14 11 Settlement Agreement, Release of All 24 28
15 Claims
16 12 Decision including Stipulation 24 28 Settlement
17 13 Request for Judicial Notice 29
18 15 CalPERS v. Garcia 34
19 16 Vandergoot Decision 35
20 17 Closing 35
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1 RESPONDENT'S EXHIBITS
2 No. Description ID EV
3 A CalPERS correspondence, 2/11/13 38 40
4 B Absence and Additional Time Worked 38
5 Report and supporting documents
6 C CalPERS correspondence, 2/13/15 44
7 D Request for Discovery 38 45
8 E Prehearing Statement, State Personnel 38 Board Matter
9 F Patient Discharge Summary 39 49
10 G Medical Report, 12/22/15 39 50
11 H Medical Report, 4/7/15 39 51
12 I Physician's Report on Disability 39 51
13 J Notice of Motion, Motion for 39
14 Continuance
15 K Mr. Scarber Correspondence, 2/18/13 39 WD
16 L Mr. Scarber Correspondence, 6/25/13 39 WD
17 M CalPERS' opposition to Motion to 40 Continue
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1 Thursday, September 15, 2016, Fresno, CA 9:00 a.m.
2 ADMINISTRATIVE LAW JUDGE WONG: We're here on the
3 record before the Board of Administration for the California
4 Public Employees' Retirement System in the matter of the
5 cancellation of the application of industrial disability
6 retirement of Sheldon K. Scarber and the California Highway
7 Patrol. It's agency case number 20150243, OAH number
8 2016050434. My name is Coren Wong. I'm an Administrative
9 Law Judge with the Office of Administrative Hearings.
10 Counsel, would you please state your appearance for
11 the record?
12 MS. YELLAND: Good morning, Your Honor.
13 Elizabeth Yelland on behalf of CalPERS.
14 ADMINISTRATIVE LAW JUDGE WONG: Good morning. And
15 sir, are you Sheldon Scarber?
16 MR. SCARBER: Sheldon Kyle Scarber. Yes, sir.
17 ADMINISTRATIVE LAW JUDGE WONG: Okay. Mr. Scarber,
18 have you appeared in an administrative proceeding before?
19 MR. SCARBER: Yes, sir. I have.
20 ADMINISTRATIVE LAW JUDGE WONG: Okay. I will tell you
21 a little bit about what you can expect from this proceeding
22 from a procedural standpoint, in case it's different from the
23 one you attended before.
24 First, I notice that you're here representing
25 yourself, which is your right. You also have the right to be

1 represented by counsel at your own expense. And is it your
2 desire to proceed today without counsel?
3 MR. SCARBER: Well, I put in a motion for continuance
4 because I've got a meeting at 10:00 -- I don't know how long
5 this is going to take -- I have a meeting at 10:00 with the
6 attorney because some things came up that parlay into this,
7 some information I recently discovered within the past couple
8 of days. But the continuance was denied, so I will go as
9 long as I can and meet with the attorney after the fact.
10 ADMINISTRATIVE LAW JUDGE WONG: Okay. So we're here
11 because you have filed -- you filed an application for
12 disability retirement and the -- CalPERS denied it on the
13 basis of the Haywood decision and you appealed the denial.
14 MR. SCARBER: Yes, sir.
15 ADMINISTRATIVE LAW JUDGE WONG: So the burden will be
16 on Ms. Yelland to prove the applicability of the Haywood
17 matter and the cases that follow Haywood. So she can
18 introduce documents, she could also call witnesses, or she
19 could do both. You have the right to object to any evidence
20 she offers, whether it's a question she asks of a witness she
21 calls, or of a document that she offers.
22 Now, recognizing you may not know the technical/legal
23 grounds for an objection, what I would suggest is that if you
24 have any questions or concerns about a document she offers or
25 a question she asks, you immediately raise those questions or

1 concerns, and I will treat that as a legal objection and
2 apply the proper standard when ruling on the objection.
3 MR. SCARBER: Yes, Your Honor.
4 ADMINISTRATIVE LAW JUDGE WONG: With regard to any
5 witnesses she may call, you have the right to cross-examine
6 them, which is just a fancy way of saying you get to ask

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BOARD OF ADMINISTRATION CALIFORNIA PUBLIC · PDF filediamond court reporters 1107 2nd st., suite 210 sacramento, ca 95814 916-498-9288 board of administration california public employees