FRESNO COUNTY EMPLOYEES RETIREMENT ASSOCIATION. Applicant Name: JOHN DOE Appointment Date:

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1 FRESNO COUNTY EMPLOYEES RETIREMENT ASSOCIATION REFERRAL FOR INDEPENDENT MEDICAL EXAMINATION Applicant Name: JOHN DOE Appointment Date: Time: 3:00 p.m. Date Name of Doctor Address Dear Dr.. On behalf of the Board of Retirement of the Fresno County Employees Retirement Association (FCERA), thank you for agreeing to perform an independent medical examination of John Doe. Mr. Doe is a 58-year old male who filed an application with FCERA for lifetime disability retirement benefits, claiming to be permanently incapacitated for performance of his/her duties as a JOB CLASSIFICATION, due to: Orthopedic complaints of the upper extremities, and Orthopedic/neurological complaints of the lumbar spine Mr. Doe also contends that his Fresno County employment substantially caused his incapacity, due to: 1. An industrial slip and fall on 1/22/04 in which he injured his lumbar spine, and 2. Cumulative trauma injury to his upper extremities while performing repetitive motion activities. Your Role in this Process You are asked to opine on whether the member is permanently incapacitated for performance of the usual duties of his/her current assignment and for the described alternative assignments within his/her job class, and, if applicant is permanently incapacitated, whether the member s employment substantially caused or aggravated such incapacity. The Board of Retirement ultimately determines whether a member is entitled to disability retirement by considering a variety of information, including your expert opinion. The Board asks that you (1) review the attached records, (2) perform a comprehensive medical examination and (3) provide written answers to the questions posed later in this letter. In responding to the posed questions, you must apply the legal standards specific to the County Employees Retirement Law (CERL) and associated case Page 1 of 10

2 law. The applicable legal standards are explained in detail directly below. Please state your opinions in lay terms, with an explanation of the facts and reasoning supporting your conclusions. CERL DISABILITY RETIREMENT STANDARDS To assist you in answering the questions posed below, the following is a description of the legal standards for determining eligibility for disability retirement under the CERL and applicable case law. Copies of pertinent case law are available upon request from the undersigned. STANDARD FOR INCAPACITY Incapacity: Under the Retirement Law, a member is incapacitated, physically or mentally, if he/she is substantially unable to perform his/her usual duties, and reasonable accommodation is not possible. Usual Duties: Usual duties are job duties the member actually performs frequently, as opposed to duties included in a job description, but which the member rarely or never performs. Reasonable Accommodation: Any modification provided by the employer that enables the member to perform his/her usual duties without exceeding his/her medical restrictions; i.e. providing assistive lifting devices, assigning a helper, changing assignments with a co-worker, changing schedule, deleting duties, etc Incapacitated: A member is incapacitated (substantially unable) to perform a job duty if: (1) The member cannot physically perform the duty at all, or (2) The member can perform the duty for a period of time, but it is medically probable that performance of the duty will cause further injury. (3) The member can perform the duty, but performance would cause pain sufficiently severe to make further performance of the duty exceedingly difficult or impossible Not Incapacitated: A member is not incapacitated (not substantially unable) from a job duty or an activity if: a. performance would cause some pain or discomfort, b. performance would cause fear of further injury, or Page 2 of 10

3 c. performance creates some risk of future injury that is less than probable, or d. accommodation allows member to perform the activity in an alternative way that meets his/her medical restrictions. STANDARD FOR PERMANENCY Permanent: An incapacity is permanent when: (1) Further change in member s condition allowing him/her to perform his/her usual duties is unlikely, and (2) No accommodation is possible allowing the member to perform duties within his/her restrictions. Not Permanent: An incapacity is not permanent where: (1) It is probable that further reasonably available conventional medical treatment, without unreasonable risk to the member, will bring about a positive material change in the member s medical condition that enables him/her to perform his/her duties, or (2) A reasonable accommodation is possible that enables the member to perform his/her duties in an alternative way that does not exceed his/her medical restrictions. NOTE: A member may not meet the permanency standard, if he/she unreasonably refuses further treatment. A refusal is regarded as unreasonable if the treatment has little risk and is likely to improve the member s condition enabling him/her to perform his/her duties. A refusal is usually regarded as reasonable if the treatment has substantial risk, is not likely to materially improve member s condition, or where applicant has bona fide religious beliefs preventing pursuit of the treatment. STANDARD FOR SERVICE-CONNECTION Service-Connection (job caused, industrial causation): (1) For incapacity to service-connected, there must be a demonstrated real and measurable link between the member s employment and the member s incapacity. a) The employment does not have to be the sole cause of the incapacity. Unlike Workers Compensation, here the employment can be less than a 50% causal factor and still be a real and measurable link to the incapacity. b) A real and measurable link is also established by substantial evidence that the employment materially aggravated or accelerated the underlying pathology of a pre-existing condition causing a member to be disabled at an earlier time than if he/she had not worked for the employer. (2) No service-connection: a) Service-Connection is not found when the member s employment merely causes a temporary aggravation of symptoms. Page 3 of 10

4 b) Service-connection is not found when the member s employment played a passive role in the development of the incapacity; that is, the employment has merely been a stage for the natural progression of a non-industrial condition. NOTE: Industrial causation is not proven, if there is no identifiable mechanism of injury to establish a real and measurable link between the employment and the incapacity or if reaching such a conclusion would involve speculation. COMPARISON OF RETIREMENT LAW AND WORKERS COMPENSATION In evaluating the member, please be aware of the fact that establishing permanent incapacity under the Retirement Law is not the same as establishing permanent disability under the Workers Compensation Law. PERMANENT DISABILITY PERMANENT INCAPACITY Permanent Disability under Workers Compensation Law is a permanent injury that impairs a worker s earning capacity or a worker s bodily function, or that creates a competitive handicap for the worker in the open labor market. Permanent Incapacity under the Retirement Law is the substantial inability of a member to perform his/her usual duties. A member may be found to have some percentage of permanent disability under the Workers Compensation Law, or be termed a Qualified Injured Worker, but such findings alone may not make the member permanently incapacitated for performance of duty under the Retirement Law. FORMAT OF YOUR REPORT Your written report should contain discussion of the following items, as well as a discussion of the specific questions set forth at the end of this letter: A. A description of the medical, personnel and job description records that you reviewed Page 4 of 10

5 B. A summary of the applicant s medical history pertaining to the subject injury or illness, and the source(s) of that information; C. A discussion of the applicant s current complaints; D. A discussion of your objective findings, if any, upon examination; E. A discussion of your impression/diagnosis of condition F. Identification of any activity that the applicant is incapacitated from performing; (Please use the specific standards described above to determine if an applicant is incapacitated from performance of an activity) and state the medically probable consequences of the applicant performing the activity. G. Your conclusions and reasoning as to whether the claimed incapacity is permanent; (Please refer to the specific standards listed above on permanency); H. Your opinions and reasoning as to whether any claimed permanent incapacity is a result of injury or disease arising out of and in the course of the member s employment, and whether that employment contributed substantially (real, measurable link) to the permanent incapacity. I. Your answers to the questions posed at the end of this letter APPLICATION SUMMARY Claim The applicant claims to be permanently incapacitated to perform his duties as an Administrative Office Professional III, due to orthopedic conditions of his/her bilateral upper extremities and lumbar spine. The applicant contends his/her conditions are a result of an injury which occurred on 1/22/04 while Page 5 of 10

6 performing the regular job duties of his employment. Specifically, applicant claims that his conditions are the result of an acute industrial slip/fall injury to his spine and a cumulative trauma injury to the upper extremities. Current Symptoms pain and weakness of both wrists, hands and fingers occasional numbness and tingling of both hands right shoulder pain low back pain, radiating into the right leg Claimed Functional Limitations limited to working 6 hours a day unable to perform heavy, repetitive use of both arms difficulty reaching above shoulder level unable to sit or stand for longer than 1 hour Claimed Industrial Injury History Claimed Acute Industrial Injury: Applicant sustained injuries to his low lumbar spine in a slip and fall at work on 1/22/04. Applicant slipped on a freshly mopped wet floor landing on his back and left hip. Claimed Cumulative Trauma Injury Applicant claims cumulative trauma injury to both upper extremities from performing computer keyboarding activities at work from 2001 to Job Duties Please see the attached description of the physical demands of the member s job assignments and those of the alternative assignments within the member s job class. Please take special notice of any described possible accommodations that would allow the member to be excused from performing certain activities or allow performance in an alternative way within the member s work restrictions. Page 6 of 10

7 MEDICAL-LEGAL QUESTIONS Please provide answers to the following questions: 1. Is there any objective evidence of an orthopedic/neurologic disorder? If so, please state: a) What tests and measurements were performed, with what results; b) Whether any test or measurement that produced an abnormal result is subject to the volition of the applicant and, if so, whether you feel the applicant fairly performed the test c) Whether the presence, absence, or degree of any objective finding is remarkable in light of the subjective complaints or the given history. 2. Does the applicant have any subjective complaints attributable to the disorder? If so, please state: a) The frequency, intensity, and duration of those complaints, both claimed by the applicant and as evaluated by you; b) Any factors that bring about the complaints or cause them to go away; c) Whether any aspect of any subjective complaints is remarkable in light of the objective findings or the given history. 3. If the member s subjective complaints include pain, please answer the following questions: a) What is the frequency, intensity and duration of the member s complaints of pain? b) Are there objective methods or tests to verify member s complaints of pain? c) Are the member s complaints of pain credible and consistent with the level of pain you would expect considering the objective findings of the pathology of applicant s condition, and consistent with that reported by other patients you ve treated with similar pathology? d) Is the pain you would expect to occur from applicant s pathology serious enough in your opinion to make performance of certain duties extremely difficult or impossible? If the answer is yes, please specify the duties affected. (refer to standards above) Page 7 of 10

8 4. Is the disorder: a) Worsening; b) Improving; or c) Remaining the same? (If remaining the same, how long has it been so?) 5. Is there presently, or is there likely to be in the future, the need for further diagnostic procedures, evaluation or treatment with respect to the disorder? If so, please describe the nature and extent of the same. 6. According to the standards set forth above and your review of the attached Job Description, does the disorder presently "incapacitate" the applicant from any activity described in the attached Job Description? Please take into account any reasonable accommodations that may be possible as described in the Job Description. If so, for each function please state: a) The nature of the function in question; b) whether or not it is physically impossible for the applicant to perform that function effectively even once (and why); c) If it is possible for the applicant to perform that function effectively at least once: 1. How frequently could the applicant perform it effectively (and why); 2. What specific medical consequences would likely ensue if the applicant were to exceed the frequency stated above (and why); 7. If you find that the applicant is currently incapacitated from performance of any job function, is such current incapacity: a) permanent; b) likely to materially improve with additional treatment, or passage of time to the point where the applicant can return to his/her usual duties with or without reasonable accommodation; or c) not presently ascertainable as either temporary or permanent? d) If you conclude that applicant s present incapacity is likely to materially improve with additional treatment, please describe the treatment medically likely to bring about such a material improvement in the applicant s functional capacity? Page 8 of 10

9 8. Based on your response to questions 6 and 7 above, and your review of the Job Description and any other materials regarding job duties, do you feel that the member: a) can return to his/her described usual assignment, or any described Alternative Assignments with no work restrictions; or b) can return to his/her described usual assignment with accommodations as described in the Job Factors Form; or c) can return to any of the described Alternative Assignments within his/her job class the demands of which are more congenial to his/her work restrictions (if so, please list the names of the appropriate alternative assignments); or d) cannot return to his/her usual assignment regardless of the described reasonable accommodations; or e) cannot return to any of the described alternative assignments. 9. Based on the standards regarding service connection included above, did the applicant's employment contribute substantially, minimally or not at all to the applicant s claimed incapacity? a) Is it medically probable that the applicant s medical condition would presently be substantially the same absent the member s employment (e.g., through the natural progression of a condition that pre-existed or otherwise arose independent of the applicant's County employment)? 10. If you opine that applicant s employment substantially contributed to applicant s claimed incapacity, please explain the nature of the mechanism of injury that is a real and measurable link between the employment and the alleged incapacity. 11. If you opine that applicant s employment did not substantially contribute to any alleged incapacity, what is the likely cause of applicant s alleged incapacity? 12. Do you feel that applicant s current condition will allow the applicant to perform other duties in another job in county service? If yes, what kind of duties, in physical terms, would the applicant be able to perform. Page 9 of 10

10 Thank you for your attention to this matter. If you have any questions regarding the content of this letter, please contact the undersigned at (559) , Your written report as well as your invoice for services should be directed to my attention at the address above. If you have any questions, please feel free to contact me. Sincerely, Retirement Coordinator Page 10 of 10

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