State Personnel Board Grants Appeal of DHS Fraud Investigator
Board Determines Medical Demotion Unlawful
On September 28, 2007 the State Personnel Board adopted the Proposed Decision of an Administrative Law Judge who determined the former Department of Health Services (DHS) (which has since been divided into the Department of Health Care Services and the Department of Public Health) violated the rights of a Fraud Investigator when they medically demoted her from her position as a peace officer to a non-peace officer analyst position.
Mary Cuilla has been employed as a Fraud Investigator with DHS since 1995. She previously served as a Special Investigator for the Department of Toxic Substances Control beginning in late 1993.
In November 2001, Cuilla suffered a number of work-related injuries to her knees which resulted in surgeries, time off and modified duty. Ultimately, because Cuilla believed she could no longer safely perform the essential functions of her position, in November 2004 she filed an application for industrial disability retirement with CalPERS (PERS).
On December 20, 2005, PERS issued a determination that Cuilla was not incapacitated for the performance of her usual and customary duties and denied her application. PERS also advised Cuilla as a result of the decision, she had the right to reinstate to her former position as a Fraud Investigator for DHS. Cuilla filed an appeal of PERS' decision to preserve the right to challenge the finding of no disability.
On February 6, 2006, Cuilla provided a memo to DHS and requested instruction in light of PERS' decision. On March 27, 2006, Cuilla submitted a Work Status Form which stated she was capable of returning to work with some restrictions effective April 3, 2006. On April 4, 2006, DHS notified Cuilla that her restrictions were incompatible with the duties of a Fraud Investigator and would have to be resolved in order for her to return to work.
On April 10, 2006, I wrote DHS and informed them that in light of PERS' decision, their option was to either appeal the decision or reinstate Cuilla to duty. On May 8, 2006, I again wrote DHS and advised that absent reinstatement and back pay, I would file an appeal with the State Personnel Board (SPB).
On May 16, 2006, DHS wrote Cuilla and informed her that as a result of PERS' decision, she was being reinstated to her position as a Fraud Investigator effective May 22, 2006. However, on May 22, 2006, DHS notified Cuilla she was immediately being placed on administrative leave and was being "transferred" to the position of Associate Governmental Programs Analyst (AGPA). On May 23, 2006, I filed an appeal from medical demotion and constructive medical termination on Cuilla's behalf.
On June 13, 2006, I wrote DHS and advised that Cuilla had provided a release to full duty from her treating physician and she should therefore, be reinstated. On July 12, 2006, DHS notified SPB of its receipt of medical clearance and inquired whether it had the authority to reinstate Cuilla to her former position. (The communication between DHS and SPB was without my knowledge and upon being informed of the inquiry, I wrote the SPB and expressed my opinion that DHS did have the authority to reinstate). On August 25, 2006, the SPB issued a resolution approving of Cuilla's reinstatement but reserving the issue of whether DHS acted lawfully in demoting her for resolution by an administrative law judge.
On February 5, 2007, the parties appeared before Administrative Law Judge Phillip Callis and stipulated to the facts giving rise to Cuilla's demotion. On March 1, 2007, the parties submitted briefs on the legal issue in dispute. In my brief, I argued SPB precedential authority required Cuilla's reinstatement immediately subsequent to PERS' denial. As a result of DHS' failure to promptly reinstate Cuilla she suffered a loss in salary of approximately $8,700, and was required to direct pay her health care contribution in the amount of approximately $1,000. She also suffered a loss of service credit for purposes of Peace Officer/Fire Fighter retirement and seniority. Cuilla also was deprived of a 5% step increase effective January 1, 2007 because, as result of the demotion, she had not been continuously employed as a peace officer for the preceding twelve (12) months.
On September 14, 2007, Judge Callis issued a Proposed Decision which was adopted by the SPB on September 28, 2007. In the decision, the SPB found the law was well-settled that upon PERS' denial of Cuilla's application, DHS was required to immediately reinstate her to her position of Fraud Investigator. The SPB ruled to the extent DHS had concerns as to Cuilla's fitness, it had the authority to conduct a fitness examination based on medical information generated subsequent to PERS' denial. The SPB revoked the "transfer" and granted Cuilla's appeal awarding all back salary, benefits and interest retroactive to April 3, 2006. Cuilla is grateful for the representation provided by CSLEA on her case.
A copy of the decision is attached at the below link.
Board Determines Medical Demotion Unlawful
Source: Kasey Christopher Clark, General Manager/Chief Counsel
Date: 10/2/2007
Mary Cuilla has been employed as a Fraud Investigator with DHS since 1995. She previously served as a Special Investigator for the Department of Toxic Substances Control beginning in late 1993.
In November 2001, Cuilla suffered a number of work-related injuries to her knees which resulted in surgeries, time off and modified duty. Ultimately, because Cuilla believed she could no longer safely perform the essential functions of her position, in November 2004 she filed an application for industrial disability retirement with CalPERS (PERS).
On December 20, 2005, PERS issued a determination that Cuilla was not incapacitated for the performance of her usual and customary duties and denied her application. PERS also advised Cuilla as a result of the decision, she had the right to reinstate to her former position as a Fraud Investigator for DHS. Cuilla filed an appeal of PERS' decision to preserve the right to challenge the finding of no disability.
On February 6, 2006, Cuilla provided a memo to DHS and requested instruction in light of PERS' decision. On March 27, 2006, Cuilla submitted a Work Status Form which stated she was capable of returning to work with some restrictions effective April 3, 2006. On April 4, 2006, DHS notified Cuilla that her restrictions were incompatible with the duties of a Fraud Investigator and would have to be resolved in order for her to return to work.
On April 10, 2006, I wrote DHS and informed them that in light of PERS' decision, their option was to either appeal the decision or reinstate Cuilla to duty. On May 8, 2006, I again wrote DHS and advised that absent reinstatement and back pay, I would file an appeal with the State Personnel Board (SPB).
On May 16, 2006, DHS wrote Cuilla and informed her that as a result of PERS' decision, she was being reinstated to her position as a Fraud Investigator effective May 22, 2006. However, on May 22, 2006, DHS notified Cuilla she was immediately being placed on administrative leave and was being "transferred" to the position of Associate Governmental Programs Analyst (AGPA). On May 23, 2006, I filed an appeal from medical demotion and constructive medical termination on Cuilla's behalf.
On June 13, 2006, I wrote DHS and advised that Cuilla had provided a release to full duty from her treating physician and she should therefore, be reinstated. On July 12, 2006, DHS notified SPB of its receipt of medical clearance and inquired whether it had the authority to reinstate Cuilla to her former position. (The communication between DHS and SPB was without my knowledge and upon being informed of the inquiry, I wrote the SPB and expressed my opinion that DHS did have the authority to reinstate). On August 25, 2006, the SPB issued a resolution approving of Cuilla's reinstatement but reserving the issue of whether DHS acted lawfully in demoting her for resolution by an administrative law judge.
On February 5, 2007, the parties appeared before Administrative Law Judge Phillip Callis and stipulated to the facts giving rise to Cuilla's demotion. On March 1, 2007, the parties submitted briefs on the legal issue in dispute. In my brief, I argued SPB precedential authority required Cuilla's reinstatement immediately subsequent to PERS' denial. As a result of DHS' failure to promptly reinstate Cuilla she suffered a loss in salary of approximately $8,700, and was required to direct pay her health care contribution in the amount of approximately $1,000. She also suffered a loss of service credit for purposes of Peace Officer/Fire Fighter retirement and seniority. Cuilla also was deprived of a 5% step increase effective January 1, 2007 because, as result of the demotion, she had not been continuously employed as a peace officer for the preceding twelve (12) months.
On September 14, 2007, Judge Callis issued a Proposed Decision which was adopted by the SPB on September 28, 2007. In the decision, the SPB found the law was well-settled that upon PERS' denial of Cuilla's application, DHS was required to immediately reinstate her to her position of Fraud Investigator. The SPB ruled to the extent DHS had concerns as to Cuilla's fitness, it had the authority to conduct a fitness examination based on medical information generated subsequent to PERS' denial. The SPB revoked the "transfer" and granted Cuilla's appeal awarding all back salary, benefits and interest retroactive to April 3, 2006. Cuilla is grateful for the representation provided by CSLEA on her case.
A copy of the decision is attached at the below link.
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