To fully understand the Department"s current use of Modified Duty Assignments, it is necessary to have a rudimentary grasp of both the Workers Compensation system and process as well as the policies and practices of the Retirement Board of the City and County of San Francisco. When an officer is injured in the line of duty, an injury report is filed. The required investigation and documentation is forwarded to the Medical Liaison Unit and a case file is formed. The SFPD"s Medical Liaison Unit monitors the member"s progress and shares the information with Workers" Compensation Adjusters. After the officer is evaluated by a treating physician, a determination is made regarding any resulting disability. Should the treating physician determine that there is some resulting disability from the injury, the officer is entitled to file a workers compensation claim. The purpose of filing the workers compensation claim is to:

Under State law, as detailed in the State Labor Code, employers must pay for any medical treatment, and temporary disability benefits for any days of lost work. In the case of a San Francisco Police officer, temporary disability benefits are equal to the officer"s regular rate of pay. Such payments must be made until the treating physician determines that the officer can return to work, at full or modified duty; or that the injury has resulted in a disability which is permanent and stationary, making it unlikely that the officer can return to full duty in his or her current assignment.

According to SFPD Department Bulletin 97-65, all work related injuries must be reported to the Medical Liaison Unit within 24 hours. The Medical Liaison Unit is a unit within the Administrative Bureau that is responsible for coordinating the Department"s efforts to focus in and reduce workers" compensation claims and injuries. The unit is part of the Staff Services Division, which oversee all personnel issues in the Police Department. The Medical Liaison Unit is supervised by a personnel Sergeant and staffed with two investigators, one Police officer, and the Police Physician. The unit also coordinates with the Claims Validation Unit, also part of the Staff Services Division, which is supervised by the personnel Sergeant and staffed by two detectives who conduct covert investigations.

The following forms must be completed whenever professional medical care is necessary for an initial occupational injury or illness:

Disabilities that are determined to be permanent and stationary must have the extent of the permanent disability rated. The rating establishes the degree of the disability. For example, a person can be determined to have a disability which equates to a negative impact of 30 percent in their ability to compete in the job market. Such a rating can be obtained from a vocational rehabilitation specialist or through an agreement between the parties of the claim (the City and the Police officer). However, the State Labor Code requires that, after such determinations of permanent disability are made stipulating the extent of the disability, the rating and any proposed claim settlement must be reviewed and approved by the California Workers Compensation Appeals Board (CWCAB).

Once the CWCAB has approved a determination that the disability is permanent and stationary and the agreements reached between the parties to the claim are reasonable, it constitutes final settlement of the workers compensation claim. Only after final settlement has been reached is the disabled officer able to:

The Department has established criteria which an officer must meet prior to requesting or submitting an application for Industrial Disability Retirement. The injury sustained must be serious. As such, the resulting disability must be rated or ratable at 50 percent or more according to the CWCAB"s permanent disability rating standards; or must be rated or ratable as substantially 50 percent with factors of disability or other relevant factors clearly establishing the seriousness of the disability when considered in light of Police occupational duties. Additionally, there must be no prospect of recovery, meaning that the injury and resulting disability must have resulted in a minimum of 365 days of modified duty; and the injury must, in accordance with reasonable medical probability, result in no reasonable prospect for the return to full duty prior to the officer"s earliest retirement date.

Under the current policies of the Retirement Board, no Police officer is granted an Industrial Disability Retirement if there are modified duty positions available within the Department. According to representatives of the Retirement Board, this policy is consistent with existing case law on the granting of Industrial Disability Retirements for Police officers.

In 1983, in Michael R. O"Toole, Plaintiff and Respondent, v. Retirement Board of the City and county of San Francisco, Defendant and Appellant, the courts ruled that the Retirement Board was correct in denying a request for an Industrial Disability Retirement by officer O"Toole because the Police Department had modified duty assignments positions which could be filled by officer O"Toole. Specifically, the court held that, " a person should not be retired if he can perform duties in a given permanent assignment within the Department...". This decision has become the standard and remains one of the criteria, used by the Retirement Board, in determining whether or not to grant a Police officer"s request for an Industrial Disability Retirement.

In recent years, a combination of the O"Toole decision, the Police Department"s practice of assigning sworn officers to performing civilian duties in modified duty assignments, and the Police Department"s past policies and practices has effectively increased the number of modified duty positions which are both filled and available. Consequently, the Department currently has 121 sworn positions budgeted to accommodate officers assigned to modified duty.

There have been additional lawsuits regarding modified duty and Industrial Disability Retirement pensions. These cases provide varying opinions, by the courts, on the treatment of disabled officers regarding assignments to Modified Duty or Industrial Disability Retirement. In Barber v. the Retirement Board of the City and County of San Francisco (1971), the Fire Department identified a maximum number of permanent modified duty positions and determined that there were no available positions for an injured officer. In this case, the court concluded that the Department had no obligation to create a position.

In another case, Craver v. City of Los Angeles (1974), in viewing a disabled Police officer, the court held that a "person should not be retired if he can perform duties in a given permanent assignment within the department. He need not be able to perform any and all duties performed by a Policeman (sic). If a person can be employed in such an assignment, he should not be retired with payment of a disability retirement pension." (as cited in Stuessel v. City of Glendale, 1983)

As a result of the Retirement Board"s policy on Industrial Disability Retirements and the existing case law, the SFPD has been forced to place officers in a Modified Duty position, regardless of the cost to the Department, when the Board does not grant Industrial Disability Retirement. In the past three years, 138 applications for Industrial Disability Retirements have been filed. Of those applications, 31 (22 percent) have been denied. Of the 31 denials, 21 (68 percent) were denied because the Board found that the officer could perform a modified duty assignment.

SFPD"s Return to Work/Reasonable Accommodation Policies

As described in the introduction to this section, Disability and Worker"s Compensation procedures and practices are determined by California State Labor Code, Administrative Code and the City Charter. All of the conditions are defined by entities such as City"s Worker"s Compensation task force, Retirement Board and the Workers" Compensation Appeals Board. These practices and procedures are interrelated with the SFPD"s policy on modified duty positions.

In November, 1997, the SFPD approved General Order 11.12, "Return to Work/Reasonable Accommodation," which supersedes the SFPD"s previous Light/Modified Duty Policy as described in SFPD Information Bulletin #86-133. Consistent with the State and Federal disabilities laws, including the Americans with Disabilities Act and the Fair Employment and Housing Act, General Order 11.12 defines the SFPD"s policies and procedures allowing for sworn members who have been injured on the job to work within their medical restrictions capabilities in temporary modified work assignments, as an alternative to being on leave during recovery from a temporary disability.

Modified Duty

A Modified Duty position is defined as a temporary assignment within the Department that can be performed by an officer who temporarily cannot perform the essential functions of his/her regular assignment. In order to comply with the revised SFPD policies and procedures for returning to work and reasonable accommodations, the following conditions must be met regarding (1) eligibility for modified duty, (2) rules governing modified duty assignments, and (3) duration of modified duty assignments.

The approval of General Order 11.12 and the implementation of the Workers Compensation Claims Management System have greatly improved the Department"s ability to monitor and manage modified duty assignments. However, the Budget Analyst has determined that the following items are still issues that should be addressed.

Recommendations

The Deputy Chief of Administration should:

Savings and Benefits

Implementation of these recommendations will more clearly define the SFPD"s modified duty policy and prevent assignment of officers who should receive an industrial disability from continuing employment in a modified duty capacity.