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 IndustrialDisability Retirement of:

CELESTE A. ALBANEZ

and

Respondent,

CALIFORNIA STATE PRISON-

SACRAMENTO, CALIFORNIADEPARTMENT OF CORRECTIONS AND

REHABILITATION,

Respondent.

Case No. 2016-1021

OAHNo. 2017021007

PROPOSED DECISION

This matter was heard before Administrative Law Judge Marcie Larson, State ofCalifornia, Office of Administrative Hearings, on April 17, 2017, in Sacramento, California.

The California Public Employees' Retirement System (CalPERS) was represented byJohn Shipley, Staff Attorney.

Respondent Celeste Albanez was present at the hearing and represented herself.

There was no appearance by or on behalf of the California State Prison-Sacramento(Sacramento Prison), California Department of Corrections and Rehabilitation,(Department). The Department was duly served with Notices of Hearing. The matterproceeded as a default against the Department, pursuant to California Government Codesection 11520, subdivision (a).

Evidence was received, the record was closed, and the matter was submitted fordecision on April 17, 2017.

CALIFORNIA PUBLIC EMPLOYEES'

RETIREMENT SYSTEM

FILED SoJi-j

ISSUE

The issue on appeal is whether on the basis of an orthopedic condition (bilateralhands), respondent is permanently disabled or substantially incapacitated from theperformance of her usual and customary duties as a Registered Nurse (RN) for SacramentoPrison?

PROCEDURAL FINDINGS

1. Respondent was employed by the Department at the Sacramento Prison as aRN from approximately 2008 until December 2015. On November 15,2015, respondentsigned and thereafter filed an application for service retirement pending industrial disabilityretirement (application) with CalPERS. By virtue of her employment, respondent is a statesafety member of CalPERS subject to Government Code section 21151. Respondent was 52years old when she filed her application.

2. In filing the application, respondent claimed disability on the basis of abilateral carpal tunnel. Respondent wrote that the condition occurred due to "repetitivemotion." Respondent further wrote that due to the injury she had "pain, swelling, numbness,tingling sensation, weakness, and [inability] to grip objects, reduced sensation in fingertips,reduced coordination (fingers), unable to lift, push or pull."

3. CalPERS obtained medical records and reports from Robert Slater, M.D.,Thomas Pattison, M.D., Rita Bermudez, M.D., Carl Shin, M.D. and Robert Henrichsen,M.D., who conducted an Independent Medical Evaluation (IME) of respondent concemingher orthopedic condition. After reviewing the reports, CalPERS determined that respondentwas not substantially incapacitated from the performance of her job duties as a RN for theDepartment.

4. On April 12,2016, and June 14,2016, CalPERS notified respondent that herapplication for industrial disability retirement was denied. Respondent was advised of herappeal rights. Respondent filed an appeal and request for hearing by letter dated July 12,2016.

5. On February 6,2017, Anthony Suine, in his official capacity as Chief, BenefitServices Division, Board of Administration, CalPERS, made and thereafter filed theStatement of Issues.

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FACTUAL FINDINGS

Duties ofan RN

1. As set forth in the Duty Statement, an RN at Sacramento Prison **providesdirect and indirect patient care to inmate patients collaborating with providers and othermembers of the interdisciplinary team." The essential duties of the position provide that 35percent of time, an RN is required to implement nursing care which includes "administrationof medication, therapeutic agents, treatment and disease prevention orders by the physicianand obtain specimens for diagnostic testing." Approximately 25 percent of die time, an RNis required to participate in an "inter-disciplinaiy team in developing multi-disciplinarytreatment efforts, assist physician's with medical or minor surgical procedures, and preparerecords and other reports." The remaining time is spent on observation, assessment,documentation and training.

2. The Department submitted to CalPERS a completed "Physical Requirementsof Position/Occupational Title" (Physical Requirements) for respondent's position, signed byrespondent on December 18,2015. According to the Physical Requirements, when workingas an RN, respondent: (1) constantly (over six hours per day) bends her neck, twists her neckand waist, simple grasps, repetitively uses her hands, uses a keyboard and mouse, is exposedto extreme temperature, humidity, and wetness, and works with bio-hazards; (2) frequently(three to six hours) sits, uses fine manipulation, power grasps, walks on uneven groimd, isexposed to excessive noise, extreme temperatures, dust, gas, fumes or chemicals, and worksat heights; (3) occasionally (up to three hours) stands, runs, walks, kneels, climbs, squats,bends at the waist, reaches above and below her shoulders, pushes and pulls, lifts between 0and over 100 pounds, drives, works with heavy equipment, is exposed to excessive noise,operates foot controls and uses special visual or auditory protective equipment; and (4) nevercrawls.

Respondent's Testimony

3. Respondent's last day of work at Sacramento Prison was January 12,2015.Respondent was experiencing numbness and tingling in her hands. She filed a workerscompensation claim the week of January 13,2015. Respondent then saw her primary caredoctor who referred respondent to Dr. Slater. In February 2015, Dr. Slater diagnosedrespondent with bilateral moderate carpel tunnel. In June 2015, respondent underwent carpeltunnel surgery on her left hand, and in October 2016, underwent carpel tunnel surgery on herright hand. Respondent contended that she did not notice any improvement in symptomsafter her surgeries. She feels decreased strength and weakness in her hands, numbness,tingling, pain and swelling.

4. Respondent does not believe she can retum to work as an RN at SacramentoPrison, because she cannot lift patients, carmot perform CPR, because it would "hurt toomuch," has difficulty opening, small medication packages, and caimot push and pull or useher hands. Respondent contended that after several hour of using her hands, she suffers from

cramping, swelling and pain. Additionally, respondent wears wrist braces for support, whichshe could not wear at Sacramento Prison due to hygiene requirements.

5. In March 2017, respondent began working as a mental health nurse in a jail inLas Vegas, Nevada. Respondent assesses the mental health of inmates during the intakeprocess to determine the appropriate jail housing and services for the inmate. As part of herduties, respondent is required to type information concerning her interview and assessmentof the inmates. She works 40 hours per week two weeks a month and 32 hours per week theother two weeks. Respondent is not receiving any reasonable accommodations to performher job duties.

Independent Medical Evaluation by Robert Henrichsen, M.D.

6. On February 16,2016, at the request of CalPERS, Dr. Henrichsen conductedan IME of respondent and thereafter prepared an initial report and two supplemental reports.Dr. Henrichsen testified at hearing. Dr. Henrichsen is a board-certified orUiopedic surgeon.He obtained his medical degree from Loma Linda University, in California, in 1967. Dr.Henrichsen has been licensed to practice medicine for approximately 40 years. Until 2011,he operated a private practice where he treated patients with orthopedic conditions, includingcarpel tuimel syndrome. Dr. Henrichsen stopp^ performing surgery in 2012. He is aQualified Medical Examiner and performs IMEs for CalPERS.

7. As part of the IME of respondent. Dr. Henrichsen interviewed respondent,obtained a medical history, and conducted a physical examination. He reviewedrespondent's job description, essential functions and the physical requirements of a RN.' Dr.Henrichsen also reviewed respondent's medical records related to her orthopedic condition,including records respondent produced at hearing concerning recent evaluations related toher workers compensation claim.

Respondent's Complaints and History of Injury

8. Respondent reported to Dr. Henrichsen that she had a gradual onset ofsymptoms in her hands. After the surgery on her left hand in June 2015, she had someimprovement in the numbness in her haiii but her pain and weakness became increased overtime. She felt little benefit from the surgery. Respondent reported that she had somephysical therapy after the surgery on her left hand. Respondent also reported that she wasconsidering carpal tuimel release on her right hand, which she eventually underwent inOctober 2016. Respondent reported pain and numbness in her right hand, wrist pain and leftshoulder pain. She performed home exercises and used wrist splints, but found they were toocumbersome. Respondent applied essential oils to her hands twice a day. She did not takeany medication for pain.

' CalPERS also provided Dr. Henrichsen with the job description for a SupervisingRN, a position that respondent had worked during her tenure at Sacramento Prison, but shedid not work as a Supervising RN as of her last day of work.

9. Respondent reported that she wore gloves because she is able to grip better.She tended to drop things more if she did not wear the gloves. Respondent reported that shewas not able to open jars and had weakness in her hands when she attempted to lift items.She dropped medicine bottles, could not peal a banana, and utilized scissors to open itemswrapped in plastic. Respondent cpntended that she could not perform CPR because of thepalm pressure that would be required. Respondent also reported that she was not able togarden, play tennis, hike, bike or paint because of her orthopedic condition.

Physical Examination

10. Dr. Henrichsen conducted a physical examination of respondent's upperextremities. Respondent's range of motion for her shoulders and elbows were normal.Respondent has some generalized shoulder pain, but there were no findings to indicate shehad biceps tendinitis. She had no evidence of swelling or effusion of the elbows. Her wristpulses were normal. Her wrists flexion, extension, ulnar deviation and radial deviation werenormal. She was able to touch her thumb to the tip and to the base of her small finger andwas able to "accomplish intrinsic plus position." Her radial pulses were equal on each side.

11. Dr. Henrichsen noted that respondent had a healed carpal tunnel incision onher left hand. There was no difference in swelling of the volar between her left and righthand. Dr. Henrichsen conducted a two-point discrimination test with respondent's gazediverted, to test sensation, which was normal. Dr. Henrichsen found no evidence of atrophyof respondent's hands, or arms. Tinel's testing and median nerve compression of the leftmore than the right "reproduced carpal-turmel-like findings." Dr. Henrichsen noted thatmedian nerve compression gave symptoms in all of respondent's fingers. There was also apositive Tinel's sign over the ulnar nerve of the left elbow.

Review of Medical Records

12. Dr. Henrichsen reviewed respondent's medical records concerning herorthopedic condition, including records from Dr. Slater, Dr. Pattison, Dr. Bermudez and Dr.Shin. Dr. Henrichsen noted that respondent had an EMG study on March 8,2015, the resultsof which were consistent on an "electrical level" to carpel tunnel syndrome. Respondentunderwent carpal turmel release in June 2015, perform^ by Dr. Slater, who noted that duringthe surgery he observed a compression of the median nerve under the transverse carpalligament Within a month of the June 2015 surgery, respondent reported some improvement.However, by August 2015, respondent reported to Dr. Shin, a physical medicine physician,that she had "persistent worsening symptoms including weakness and thumb pain" in her lefthand. Dr. Shin recommended that respondent undergo a new electrical study. Dr. Shinreferred respondent to Dr. Bermudez for an electrical study.

13. On October 13,2015, respondent was evaluated by Dr. Bermudez.Respondent reported to Dr. Bermudez that she had some improvement in the numbness inher left hand after surgery in June 2015, but she had weakness. Respondent also reportedtingling in her right thumb. Dr. Bermudez tested respondent's sensation and found it intact

Her motor strength in her left upper extremity was normal. Dr. Bermudez found there waspositive Tinel's sign of the left ulnar nerve at the elbow and right medial nerve at the wrist.Dr. Henrichsen was not able to review the entire conduction study findings performed by Dr.Bermudez because portions of the report were blacked out.

Diagnoses.

14. Based on Dr. Heruichsen's evaluation of respondent, his diagnosis related torespondent's orthopedic condition were:

1. History of left carpal tunnel release with persistentsymptoms.

2. Right carpal tunnel syndrome.

15. Dr. Henrichsen noted that his "assessment of the situation is that treatment issignificantly incomplete." Dr. Henrichsen noted that there were no "imaging studies" andrespondent's pain was "far out of proportion to what should have been present after whatappears to be a straightforward carpal tunnel syndrome problem with an appropriate openrelease then x-rays of the left wrist were appropriate." Dr. Henrichsen also noted he wasunable to read portions of Dr. Bermudez's "EMG/NCV study report" and the ability toreview a better copy of the report would help him a "significant amount" Dr. Henrichsenopined that respondent was "beginning to demonstrate evidence of multiple areas of nervecompression."

16 Dr. Henrichsen recommended various ways to obtain further informationregarding respondent's condition, including a "one-time injection of the left carpal tuimelwith a steroid and some Xylocaine" to determine if there is any temporary benefit. He alsorecommended a repeat nerve conduction study using an "inching technique trying todetermine if there is a compression sight." Based on those findings, a repeat left carpaltunnel release may be indicated if there is a significant compression on the median rierve ofthe left wrist. Dr. Henrichsen opined that respondent's history of dropping items was notsupported by the examination he conducted, nor those conducted by Drs. Pattison or Shin.Dr. Henrichsen and Dr. Pattison found "normal 2 point discrimination" and Dr. Shin foundon August 24,2015, no motor or sensory deficits.

17. In response to the question posed by CalPBRS to Dr. Henrichsen concemingwhether there were specific job duties that respondent wasr unable to perform because of aphysical or mental condition. Dr. Henrichsen opined that respondent was "precluded fromfrequent power grasping, and repetitive use of the hands." He opined that respondent couldperform keyboard work, four hours in an eight hour work day. Respondent could engage inrepetitive use of her hands four hours in an eight hour work day.

18. Dr. Henrichsen opined th^t respondent was substantially incapacitated fromthe performance of her usual duties as a RN, because she was precluded from frequent powergrasping, and limited to four hours of repetitive use of her hands and keyboard work. Dr.Henrichsen further opined that respondent's incapacity was temporary. He stated that the"incomplete information" he had available to review indicated that a "less than six months oftemporary incapacity is appropriate." He opined that six months would give respondent timeto "have an injection in ei&er or both wrists and to have a second left carpal tunnel release."

Supplemental Reports and Opinions

19. On March 4,2016, CalPERS sent Dr. Henrichsen a better copy of Dr.Bermudez's October 15,2015 EMG/NCV study report. Dr. Henrichsen was asked to review.the report and submit a supplemental report concerning whether based on the informationfrom Dr. Bermudez, respondent is substantially incapacitated from the performance of herusual duties as an RN.

20. OnMarchO, 2015, Dr. Henrichsen authored a Supplemental Report. Dr.Henrichsen opined that the EMG/NVC study performed on respondent by Dr. Bermudez onOctober 15,2015, demonstrated that the "left median nerve stimulates across the wrist to therecorded sites of thumb, index long and ring fingers averaging about 4.0 ms. The indexfinger was 3.8 ms. and the long finger was 4.2 ms., so it is about 4.0. ms." Dr. Henrichsenfurther stated that the "normal from the Cleveland Clinic for a person age 50-59,... are tohave the distal latency to be less than 3.6 ms. So, there is some but not a large amount ofsensory delay."

He also noted that the Dr. Bermudez administered a Semmes-Weinstein

monofilament test to determine nerve sensation. Respondent's nerve sensation was intact.Testing also indicated that respondent's "sensory nerve fibers are functioning and supplyinga good report to her cerebral cortex, but there is some delay at the wrist consistent with thehistory of carpal turmel surgery." Dr. Henrichsen stated that the new information from Dr.Bermudez caused him to "alter" his prior opinions and conclusions. Dr. Henrichsen opinedthat respondent does not have "desensate lesions, her Semmes-Weinstein monofilaments testwas normal" and she has "mild to moderate delay of nerve conduction at the wrist." Dr.Henrichsen also stated that his examination of respondent "did not fmd evidence of atrophy"of the musculature which is supplied by the motor branch of the median nerve. As a result ofDr. Henrichsen's review of the additional information, he opined that respondent was notsubstantially incapacitated from her work as an RN for Sacramento Prison. He opined thatrespondent was able to perform keyboard work, and to engage in repetitive use of her hands.

21. On March 21,2016, Dr. Henrichsen prepared a Supplemental Report based onadditional records sent to him by CalPERS from Dr. Bermudez's October 15,2015evaluation. Dr. Henrichsen opined that the EMG study demonstrated that respondent had"some polyphasic potentials in the abductor pollicis brevis muscle of the left thumb and theserepresent healing from a previous carpal tunnel syndrome." He noted that Dr. Bermudez"alerdy identified that because she had previous carpal tunnel release the electrical findings

may be due to incomplete recovery of the nerve and not necessarily ongoing compression."The additional information Dr. Henrichsen reviewed did not change his opinion thatrespondent was not substantially incapacitated from her duties an as RN at SacramentoPrison.

22. Dr. Henrichsen also reviewed a report dated March 23,2017, from Dr.Pattison, who performed a Panel Medical Evaluation on respondent concerning her workerscompensation claim. Dr. Pattison examined respondent and opined that she was post left andright carpal tutmel release with "fairly good clinical results." He also foimd that respondenthad normal sensation in her hands and that her grip strength on her left hand improved. Dr.Pattison found no evidence of atrophy. Dr. Pattision did not opine as to whether respondentwas substantially incapacitated from the performance of her duties as an RN for SacramentoPrison. Dr. Henrichsen opined that Dr. Pattison evaluated respondent using the workercompensation criteria, which is not the same standard that he applied for respondent'sCalPERS matter. Dr. Henrichsen also testified that Dr. Pattison's findings did not change hisopinion that respondent was not substantially incapacitated from her duties an as RN atSacramento Prison. Dr. Henrichsen explained that respondent may have symptoms, but hersymptoms do not prevent her from performing her job duties.

Discussion

23. When all the evidence is considered. Dr. Henrichsen's opinion that respondentwas not substantially incapacitated from the performance of her usual and customary dutiesas a RN for Sacramento Prison, based upon her orthopedic condition, was persuasive. Dr.Henrichsen based his opinion on his review of respondent's job description, the physicalrequirements of the job, review of the medical records and a physical examination. Thephysical examination Dr. Henrichsen conducted revealed no evidence of atrophy. The testsperformed by Dr. Bermudez demonstrated that respondent's Semmes-Weinsteinmonofrlaments test was normal and she has mild to moderate delay of nerve conduction atthe wrist, which could be caused by incomplete recovery from surgery, not ongoingcompression. Dr. Henrichsen explained that respondent may have symptoms, but dieevidence established that she was capable of peiforming her duties as a RN at SacramentoPrison.

24. Additionally, none of the medical records reviewed by Dr. Henrichsencontradict his opinion that respondent was not substantially incapacitated from theperformance of her usual and customary duties as a RN. There is no indication in the recordsthat any of the doctors applied the CalPERS disability standard to determine that respondentwas substantially incapacitated from the performance of her usual and customary duties as aRN for Sacramento Prison, based on her orthopedic condition.

25. Respondent failed to present competent medical evidence to support herassertion that at the time she filed her application she was substantially incapacitated fromthe performance of her usual and customary duties as a RN based upon the legal criteria

applicable in this matter. Consequently, respondent failed to establish that her industrialdisability retirement application should be granted based upon her orthopedic condition.

LEGAL CONCLUSIONS

1. Respondent seeks disability retirement pursuant to Government Code section21151, subdivision (a), which provides in pertinent part, that "[a]ny patrol, state safety, stateindustrial, state peace officer/firefighter, or local safety member incapacitated for theperformance of duty as the result of an industrial disability shall be retired for disability,pursuant to this chapter, regardless of age or amount of service."

2. To qualify for disability retirement, respondent must prove that, at the time sheapplied, she was "incapacitated physically or mentally for the performance of his or her duties—" (Gov. Code, § 21156, subd. (a)(1).) As defined in Government Code section 20026:

"Disability*' and "incapacity for perfonnance of duty" as a basis ofretirement, mean disability of permanent or extended anduncertain duration, as determined by the board... on the basis ofcompetent medical opinion.

3. 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.)

4. In Hosford v. Board of Administration (1978) 77 Cal.App.3d 855, the courtexplained that prophylactic restrictions that are imposed to prevent the risk of future injuiy orharm are not sufficient to support a finding of disability; a disability must be currentlyexisting and not prospective in nature. The applicant in Hosford had suffered injuries to hisleft ankle and knee, and had strained his back. The court noted that the sergeant "could sitfor long periods of time but it would 'probably bother his back;' that he could run but notvery adequately and that he would probably limp if he had to run because he had a bad ankle;that he could apprehend persons escaping on foot over rough terrain or around and overobstacles but he would have difficulty and he might hurt his back; and that he could makephysical effort from the sedentary state but he woiild have to limber up a bit." {Id. at p. 862.)Following Mansperger^ the court in Hosford found that the sergeant:

... is not disabled unless he is substantially unable to performthe usual duties of the job. The fact that sitting for long periodsof time in a patrol car would "probably hurt his back," does notmean that in fact he cannot so sit;... [^ 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 previous

injuries. 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. (Jbid.)

In Hosford^ the sergeant argued that his condition increased his chances for furtherinjiuy. 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.)

5. 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 from ademonstrable mild degenerative change of the lower lumbar spine at the L-5 level, thediagnosis and prognosis for the appellant's condition are dependent on his subjectivesymptoms." In Smith v. City ofNapa (2004) 120 Cal.App.4th 194,207, the court found thatdiscomfort, which may make it difficult for an employee to perform his duties, is notsufficient in itself to establish permanent incapacity. (See also. In re Keck (2000) CalPERSPrecedential Bd. Dec. No. 00-05, pp. 12-14.)

6. The standards in CalPERS disability retirement cases are different from thosein workers' compensation cases. (Bianchi v. City of San Diego (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) 72 Cal.App.3d 128, 132 [a workers'compensation ruling is not binding on the issue of eligibility for disability retirement becausethe focus of the issues and the parties are different].) Thus, any determination of disabilitythat may have been made in respondent's workers* compensation case cannot be given anyweight in this proceeding.

7. The binden of proof is on respondent to demonstrate that she is substantiallyincapacitated from the performance of her usual and customary duties such that she ispermanently disabled. {Harmon v. Board of Retirement of San Mateo County ̂ supra, 62 Cal.App. 3d 689; Glover v. Board of Retirement (1980) 214 Cal. App. 3d 1327,1332.) To meetthis burden, respondent must submit competent, objective medical evidence to establish that,at the time of her application she was permanently disabled or incapacitated from performingthe usual duties of her position as a RN for Sacramento Prison. (See Harmon v. Board ofRetirement, supra, 62 Cal.App.3d at 697.)

8. When all the evidence in is considered in light of the courts' holdings inMansperger, Hosford, Harmon, Smith and Keck, respondent did not establish that herindustrial disability retirement application should be granted. Respondent failed to establishthrough competent, objective medical evidence that she was permanently disabled orsubstantially incapacitated from the performance of her usual and customary duties of her jobas a RN, based on her orthopedic condition. Consequently, her industrial disabilityretirement application must be denied.

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ORDER

Respondent Celeste Albanez*s application for industrial disability retirement isDENIED.

DATED: May 1,2017

^o^DoeuSfgnad by;

F72F4886838S41C„.

MARGIE LARSON

Administrative Law JudgeOffice of Administrative Hearings

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