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 forDisability Retirement of:

JUDYANIBALDI,

and

Respondent,

VALLEY CENTER-PAUMA UNIFIED

SCHOOL DISTRICT,

Respondent.

Case No. 2018-0286

OAHNo. 2018061214

PROPOSED DECISION

Mary Agnes Matyszewski, Administrative Law Judge, Office of AdministrativeHearings, State of California, heard this matter in San Bernardino, California, on October 8,2018.

John Shipley, Attorney, represented petitioner Anthony Suine, Chief, Benefit ServicesDivision, Board of Administration, California Public Employees' Retirement System(CalPERS), State of California.

Judy Anibaldi, respondent, represented herself.

There was no appearance by Valley Center-Pauma Unified School District (district),respondent. Based on proof of compliance with Government Code sections 11504 and11509, this matter proceeded as a default against the district pursuant to Government Codesection 11520.

On October 8,2018, the matter was submitted.

CALIFORNIA PUBLIC EMPLOYEES'

RETIREMENT SYSTEM ̂FiiFnNOY.3 ifllg

PROTECTIVE ORDER SEALING CONFIDENTIAL RECORDS

Information in some of the exhibits is subject to a protective order. Exhibit 20, Ms.Anibaldi's medical records, was received and contained confidential information. It isimpractical to redact the information from this exhibit. To protect privacy and theconfidential personal information from inappropriate disclosure. Exhibit 20 is ordered sealed.This sealing order governs the release of documents to the public. A reviewing court, partiesto this matter, their attorneys, and a government agency decision maker or designee underGovernment Code section 11517, may review the documents subject to this order, providedthat the documents are protected from release to the public. No court reporter ortranscription service shall transcribe any testimony regarding the information contained inExhibit 20.

ISSUE

Was Ms. Anibaldi permanently disabled or incapacitated from performing her usualand customary duties as a bus driver with the school district due to her rheumatologic andcardiologic conditions when she filed her application for disability retirement?

SUMMARY OF DECISION

Ms. Anibaldi had the burden to prove that she was permanently disabled orincapacitated from performing her usual and customary job duties due to her rheumatologicor cardiologic conditions. The competent medical evidence introduced at this hearing did notsupport her claim that she was permanently disabled or incapacitated from performing theregular and customary duties of a bus driver due to her conditions. Ms. Anibaldi's claim fordisability retirement is denied.

FACTUAL FINDINGS

Preliminary Matters

1. Ms. Ambaldi was employed by the district as a bus driver. By virtue of heremployment, Ms. Anibaldi was a local miscellaneous member of CalPERS subject toGovernment Code section 21150.

2. On March 6,2017, Ms. Anibaldi filed a Disability Retirement ElectionApplication with CalPERS. In the "Application Type" section she checked the boxesmarked "Disability Retirement" and "Service Pending Disability Retirement." Ms. Anibaldiidentified her disability as "chronic fatigue/myalgia encephalomyelitis" which occurred onAugust 5,2013, "[t]he 1st time I took medical leave off work for condition." In response tothe question asking how the disability occurred, she wrote, "unknown, possible viral

infection." Ms. Anibaldi stated that the limitations/preclusions due to her injury or illnesswere: "Can not safely drive a school bus and drop students in a safe manner." In response tothe question asking how her injury or illness affected her ability to perform her job, Ms.Anibaldi attached a three-page typed document outlining her condition, how it affected her,and the work limitations she had because of it. Ms. Anibaldi identified her treating physicianand checked the box marked **No" asking if she had any workers' compensation claims.

3. CalPERS obtained medical records and reports related to Ms. Anibaldi'sconditions and selected Robert Weber, M.D., a board certified internist and cardiologist, andQuang Vo, M.D., a board certified rheumatologist, to perform disability evaluations in theirrespective fields. Each physician provided CalPERS with narrative reports containing hisfindings and conclusions. After reviewing all of those documents, CalPERS determined thatwhen Ms. Anibaldi filed her apphcation for a disability retirement, she was not permanentlydisabled or incapacitated from performing the usual and customary duties of a bus driver.

4. On December 29,2017, CalPERS notified Ms. Anibaldi that her applicationfor disability retirement was denied. CalPERS advised her of her right to appeal.

5. On February 19,2018, Ms. Anibaldi sent a letter to CalPERS documenting aFebruary 16,2018, phone call, and noting that this was her second appeal of her disabilityretirement denial. She wrote that she submitted her first appeal on May 28,2017, but wastold it was "placed on hold" and asked to provide more medical information.^ Ms. Anibaldiwrote that even though the request for additional documents did not make sense to her,because she had already provided all of her information regarding chronic fatigue, shesubmitted additional information fi-om her primary treating doctor who noted fiiat hersymptoms were consistent with chronic fatigue. Ms. Anibaldi also objected to Dr. Vo'sreports and attached a memo to her letter outlining the errors in his reports. She further notedthat both she and Dr. Weber were confused as to why she had been sent to him for anevaluation since her complaints were all chronic fatigue related.

6. The memo attached to Ms. Anibaldi's letter was dated September 2,2017, andstated she was "upset to see many discrepancies in [Dr. Vo's] report, and would like toaddress the most obvious errors[.]" She then identified the following mistakes: on page 2under Past Surgical History, contrary to the report, Ms. Anibaldi never had a thyroidectomy;on page 3, under Social History, her last day at work was December 16,2016, not February16, 2016; and on page 6, in the Discussion section at paragraph 3, the report contained errorsbecause: "I do have myalgia and headaches, it is just not continuous; I DID and DO reportunrefi-eshing sleep, also have extreme exhaustion lasting sometimes more than 24 hrs ofphysical or mental exercise [.s/c]; I do meet the criteria for chronic fatigue for Mayo clinic[5/c] as well as for Center [5/c] for Disease Control and Prevention."

7. On March 26,2018, CalPERS sent Ms. Anibaldi a letter acknowledgingreceipt of her appeal and advising that her case would be assigned to an attorney.

The first appeal was not offered at hearing.

8. On June 12,2018, petitioner filed the Statement of Issues in his officialcapacity. The Statement of Issues and jurisdictional documents were served on respondents.

Job Description Document

9. The Physical Requirements Essential Functions of a bus driver outlined thephysical requirements including the activities and firequency of that position. The JobDescription for a district bus driver outlined the essential functions and minimumqualifications required. Dr. Weber and Dr. Vo relied upon these documents whenformulating their opinions.

CalPERS's Medical Evaluation Conducted by Dr. Weber, His Report, and Testimony

10. Dr. Weber graduated from the University of California, Los Angeles with aBachelor of Arts degree in 1970. He obtained his Doctor of Medicine degree firom TheMedical College of Wisconsin^ in 1974. He is board certified in internal medicine with asubspecialty board certification in cardiovascular disease and is a Qualified MedicalExaminer. Dr. Weber has a private practice in cardiology in Los Angeles.

11. On November 13,2017, Dr. Weber performed an independent medicalevaluation of Ms. Anibaldi for CalPERS and authored a report. He wrote that he focused onher symptoms suggesting cardiovascular disease and deferred all of her other conditions tothe respective specialists. Dr. Weber took a history of present illness and a past/subsequentmedical history - including illnesses, surgeries, medications, allergies, habits, and familyhistory. Dr. Weber performed a review of systems, a physical examination, and conducted arecords review. Dr. Weber made the following diagnoses: history of dyspnea at rest andwith light exercise, no evidence of cardiovascular etiology; symptoms of palpitations, notcorroborated by a 30-day cardiac event recorder; atypical chest pain, doubt myocardialischemia; history of negative exercise stress echocardiogram; "history" of orthostaticsymptoms, hypotension not demonstrated in medical records or diagnostic studies and notdemonstrated on a tilt table test; "history" of physiologic sinus bradycardia during sleep; andcomplaints of chronic fatigue. In the Discussion section Dr. Weber wrote:

Ms. Anibaldi has been extensively evaluated by her consultantcardiologist, Dr. Ahem at Scripps Clinic. She has had anunremarkable echocardiogram, unrevealing cardiac eventmonitor, normal carotid duplex Doppler scan. Although she hassymptoms/suggestive of cardiovascular disease or dysfimction,extensive testing has not demonstrated objective findingsconsistent with any of her symptoms.

^ Although both experts attended the same medical school, Dr. Weber's curriculumvitae had "The" in the name of his medical school; Dr. Vo's did not.

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In response to CalPERS's specific disability questions. Dr. Weber wrote: "Based onmy objective findings on the basis of having performed the history and physical examinationof [Ms. Anibaldi] as well as having reviewed her medical records, with regard to hercardiovascular evaluation, it is my professional opinion that there are no specific job dutiesthe member is unable to perform because of a cardiovascular condition." Dr. Weber opinedthat Ms. Anibaldi "is not substantially incapacitated, from the cardiovascular perspective, forthe performance of her duties." He found her to be "cooperative with the examination anddid not show evidence of exaggeration of complaints."

12. Dr. Weber testified consistent with his report. Dr. Weber testified about hisfindings, including the heart murmur he found during his examination of Ms. Anibaldi whichwas a "physiologic finding associated with the normal aging process of the heart." Ms.Anibaldi's murmur was a grade 1, the lowest grade there is, as it was extremely faint; a"totally benign murmur." The rest of her physical examination was "completely normal."Dr. Weber noted that Ms. Anibaldi "has had the benefit of an extensive cardiac workup" byher treating physicians and the tests have been inconclusive. Moreover, even though she hadsome abnormal findings, subsequent testing ruled out any cardiac conditions. None of hertreating physicians found anything that would account for Ms. Anibaldi's cardiacsymptoms/complaints. As Dr. Weber explained, "clearly nothing shows any abnormalitythat could explain the types and range of symptoms [Ms. Anibaldi] has been having."Despite her complaints of lightheadedness, no drop in her blood pressure had been recorded,despite her having undergone 30-day cardiac monitor testing. Dr. Weber "did not find anyspecific job duty based on any diagnosed cardiac condition that would render Ms. Anibaldi"unable to perform" her job fimctions. Dr. Weber found that Ms. Anibaldi "was notsubstantially incapacitated from a cardiac perspective, for performance of her duties."

Dr. Weber made an excellent witness. He testified in a measured, confident anddeliberate manner. It was clear he was an extremely knowledgeable cardiologist who tookhis time rendering his opinions, which were very persuasive.

CalPERS's Medical Evaluation Conducted by Dr. Vo, His Reports, and Testimony

13. Quang Dinh Vo, M.D., graduated with a Bachelor of Science degree inbiochemistry from University of California, San Diego in 1997. He received his Doctor ofMedicine degree from Medical College of Wisconsin in 2001. He did an internal medicineresidency at the University of Southern California from 2001-2004; his rheumatologyfellowship training at UCLA-San Fernando Valley Program from 2006-2008; and was aHealthcare Partners Leadership Institute Graduate from 2010-2011. Dr. Vo is board certifiedin internal medicine and board certified in rheumatology. He has been an Academy ofClinical Research Professional Certified Physician Investigator since September 2012.

14. Dr. Vo examined Ms. Anibaldi on April 13,2017, and authored a report. Heauthored an amended report, received by CalPERS on June 18, 2018, correcting some but notall of the errors that Ms. Anibaldi outlined in her memo referenced above in Factual FindingNo. 6. Despite the errors. Dr. Vo did not alter his opinions expressed in his original report.

Dr. Vo documented that Ms. Anibaldi's chief complaint was chronic fatiguesyndrome/myalgic encephalomyelitis. He took a history of her present injury, past medicalhistory, past surgical history, family history, current medications, social history, andallergies. He performed a physical examination and conducted a records review. Dr. Vo'simpressions were: chronic fatigue, hypothyroidism, dyslipidemia, vitamin D deficiency,chronic interstitial cystitis, and methylenetetrahydrofolate reductase deficiency. In theDiscussion section Dr. Vo wrote:

Ms. Anibaldi says she sometimes becomes disoriented whiledriving and because this is largely a safety concern [jzc].Although I cannot conclude or confirm that she meets thediagnostic criteria for chronic fatigue syndrome as proposed bythe Mayo Clinic, I cannot explain the etiology of her chronicfatigue s)miptoms.

She does have hj^othyroidism that is adequately treated. Shedoes have complaint of intermittent or paroxysmal fluttering orpalpitations that is going to be investigated afterechocardiogram and event monitor.

She does not meet the criteria for chronic fatigue syndrome orfor systemic exertional intolerance, as proposed by the Mayoclinic [j/c]. She does not have a history of sore throat, myalgia,lymphadenopathy, arthralgia, polyarthritis, or headache, nor didshe report unrefreshing sleep. She does not complain ofdizziness or lightheadedness and does not report extremeexhaustion lasting more than 24 hours after physical or mentalexercise.

Dr. Vo concluded that based on his objective findings, there "is no specific job dutythat [Ms. Anibaldi] cannot perform because of the alleged condition of chronic fatigue." Dr.Vo opined that she "is not presently substantially incapacitated for the performance of herduties as a bus driver." Dr. Vo felt Ms. Anibaldi had cooperated fully with the examinationand put forth her best effort.

15. Dr. Vo testified that chronic fatigue syndrome is a diagnosis of exclusionmade after other conditions have been ruled out. Persons suffering from chronic fatiguesyndrome can have different presentations, some symptoms can overlap with symptomscaused by other conditions, and there is no test to make a chronic fatigue syndromediagnosis. Dr. Vo admitted that he does not specialize in this syndrome. Instead, heresearched the condition, including researching the Centers for Disease Control's (CDC)definition of the condition which requires that an individual have severe fatigue for at leastsix months that is associated with at least eight other symptoms. When reviewing Ms.Anibaldi's complaints and medical records. Dr. Vo could not find that she met therequirements needed to meet the criteria to receive a chronic fatigue diagnosis as defined by

the CDC. Additionally, Dr. Vo opined that Ms. Anibaldi does not have any underlyingrheumatologic condition that would explain her symptoms. He "was not sure how to tie hersymptoms" to any of her abnormal findings and her abnormal findings did not support adiagnosis of chronic fatigue syndrome.

Based upon his examination, review of medical records, and her job duties, Dr. Voconcluded that Ms. Anibaldi is not substantially incapacitated from performing her job. Dr.Vo acknowledged the errors in his report but testified that his corrections did not alter hisopinions. Although Dr. Vo agreed that it would be "unsafe" for Ms. Anibaldi to operate aschool bus, he opined that based upon his objective findings and his examination, he could"see nothing to corroborate with severe mental incapacity or physical incapacity that wouldprevent her from performing her job duties."

Dr. Vo made a fair witness. He testified in a very hesitating and unsure manner,admitting that chronic fatigue syndrome was not his specialty. He never testified that theCDC criteria were the only criteria one must meet to receive the diagnosis. Moreover, hisreports contained significant errors making them unreliable. However, because respondenthad the burden of proof, her failure to offer sufficient evidence of her disability, as notedbelow, resulted in her being unable to meet her burden, despite Dr. Vo's presentation.

Documents Introduced by Ms. Anibaldi

16. Ms. Anibaldi submitted a three-page document outlining her position with fiveattachments that was marked and received as Exhibit 18. In the document, Ms. Anibaldistated that she "cannot bring specialists or attorneys to my defense, but I can bring the lawsthat govern my career of over 21 years. The laws that govem my ability to work include themedical review process which I am no longer qualified to do based on my health." Ms.Anibaldi attached an additional report from Robert Fox, M.D., her treating physician; aDepartment of Motor Vehicles (DMV) Medical Examination Report for Commercial DriverFitness Determination form; a DMV Medical Examination Report Instructions to the Driverthat must be used when applying for a commercial California driver license or certificate(school bus) that requires a medical examination which contained a reference to Title 49Code of Federal Regulations (CFR) section 391.41; a Department of California HighwayPatrol (CHP) Special Certificate Application which is to be used when applying for a schoolbus certificate; and the district's Job Description for bus driver which was the document Dr.Vo and Dr. Weber each reviewed when forming their opinions.

Ms. Anibaldi's Letter

17. Ms. Anibaldi wrote that she can no longer perform the basic job functionsrequired and is disabled from her job duties "by my disease and any like professionsrequiring professional driving. Chronic Fatigue has forced me into early retirement." Shewrote further: "I can no longer safely transport children because of my medical condition,this excludes me from any type of professional driving. You should consider if I was driving

your child if you would feel safe with my medical conditions behind the wheel of yourchild's bus."

The minimum qualification for her job requires her to pass the DMV commercialdriver fitness determination.^ She asserted that she does not meet the minimum

qualifications because she has '"daytime sleepiness' and takes a medically prescribed 'habitforming' Provigil for my condition. DMV will not allow me to continue to drive a schoolbus or any other like professional driving with this is [5zc] medical condition that medicallydisables me." She noted that Title 49, Code of Federal Regulations, section 391.41subdivision (b)(9), provides that a mental disorder cannot interfere with the ability to drive amotor vehicle safely and that her "disabling condition" affects her memory, reasoning,attention and judgment; all qualities she must possess in order to perform her duties as aschool bus driver. Ms. Anibaldi claimed that she has "functional disorders which cause

drowsiness, dizziness, confusion, weakness and paralysis, (which is what I referred to as'auto-pilot' and 'trance-like' episodes) that may lead to incoordination [5/c] and inattentionon a freeway with a busload of schoolchildren. I am prone to loss of functional control andsusceptibility to accidents while driving any professional vehicle." She noted that she has"physical fatigue" and "impaired coordination" which are disqualifying medical conditionsas "noted in the regulation."

Ms. Anibaldi further asserted that a "warranted disqualification of a school bus driverfrom their driving certificate is the inability to adequately respond to environmental strainand emotional stress which is critical in assessing an individual's mental alertness andflexibility to cope with the stresses of commercial motor vehicle driving. I can no longermeet the job qualifications because of my disabling disease."

Ms. Anibaldi noted that the district's job description requires her to ensure a safeoperating condition and the safety of students during transport, loading, and unloading.However, she can no longer perform those job functions because of her "functionaldisorders, dizziness, drowsiness, confusion, weakness and paralysis." She must also monitorstudents during changing road conditions using safe practices which she can no longeraccomplish because of her impaired ability to multitask. She is also required to administerfirst aid and pass a first aid test which she can no longer do because of die physical fatigueand mental alertness caused by her condition. She wrote that her illness makes her "verysusceptible to additional fatigue while driving in any temperature extremes." She also notedthat in her previous communications with CalPERS, she failed to point out that she is unableto comply with the job description requirements, claiming that she forgot about thoserequirements when asserting she was disabled "in part, due to my illness."

Ms. Anibaldi further wrote that Dr. Fox supports her position that she can no longerperform her job duties and detailed how unsafe it would be for her to operate a school bus.Ms. Anibaldi noted that Dr. Fox is treating her chronic fatigue as narcolepsy and metabolic

^ Ms. Anibaldi submitted no evidence that she had ever failed the DMV commercialdriver fitness determination.

myopathy, but that the two "symptoms and disabilities are very much the same." She isaware that there is no defined testing for chronic fatigue and it is typically a rule outdiagnosis, meaning all other conditions have been ruled out, but whatever her illness iscalled, "it is still very much disabling to me."

Ms. Anibaldi concluded her written statement by noting:

I am trying to do what is right for school children of California.Disabling me as a school bus driver is what is safest for thedriving public and students of California. The most basic jobdescription duties cannot be completed by me and this isconfirmed by my Dr. Fox [5zc]. DMV disqualifies me from myprofession. The vehicle code disqualifies me from myprofession. CalPERS can clearly see with this additionalinformation a disability retirement is warranted.

However, Ms. Anibaldi submitted no evidence that any treating physician, employer,or DMV official had ever determined that she was "disqualified" from W profession, thatshe had failed to have her license renewed, or that she had been prohibited from driving.

DMV Medical Examination Report

18. The DMV medical examination report contains a section marked healthhistory with instructions that a yes answer requires the applicant to provide the treatingphysicians name and address and contains a section for Ae treating physician to complete.No evidence was introduced that any of Ms. Anibaldi's treating physicians completed thisform on her behalf. Title 49 Code of Federal Regulations, section 391.41, referenced in theDMV medical examination report instructions, merely identified factors that may beinvolved in the driver's performance of duties. Ms. Anibaldi's reference to this regulationdid not establish that she qualified for disability retirement absent more evidence.

CHP Special Certificate Application

19. The CHP Special Certificate Application contained the requirements forlicense renewal which include a "current medical report (DL-51) and medical examiner'scertificate." The CHP application noted the required tests, mandatory disqualifying criteria,discretionary disqualifying criteria, and physical qualifications. Again, no evidence wasintroduced that Ms. Anibaldi had applied and been denied receipt of this certificate by CHP.

Dr. Fox's Report

20. On September 24, 2018, Robert 1. Fox, M.D., Ph.D., F.A.C.P., ScrippsRheumatology Clinic, wrote:

I am writing in support of disability retirement for JudyAnibaldi, whom I have been treating since May 2018. I havestudied her past medical records with Scripps Medical and findher diagnosis of muscle weakness metabohc myopathy andepisodes of loss of consciousness (Narcolepsy) which make herunsafe to drive a school bus.

Judy Anibaldi has been diagnosed with:

• Metabolic myopathy with elevated ammonia and lactic acidlevels

• Narcolepsy• Sleep disorder (non-restorative sleep, prolonged sleep)• Orthostatic Intolerance

• Ocular Migraines with visual impairments• Hashimoto's Thyroiditis• Temperature Intolerance• Interstitial Cystitis

Her medical records show that other diseases that could cause

the same symptoms all have been ruled out.

She is expressing all the typical symptoms and natural course ofpersons with a metabolic myopathy, including exertionintolerance, post-exertional malaise, cognitive difficulties [j/c].Due to her other problems listed above,, she has non-restorativesleep, and headache (ocular migraines).

Despite trying many medical therapies there has been littleimprovement in Mrs. Anibaldi's condition. This is a chronicillness for which she has been seeking medical help for [^zc]since 2013.

With her condition progressively getting worse she could nolonger safely drive a school bus as of December 16,2016 andapplied for disability retirement with CalPERS in March 2017.Mrs. Anibaldi is physically unqualified to perform her job dueto episodes of losing consciousness and weakness. She isrequired to meet job conditions such as problem solving,analyze issues, make quick decisions, have quick responses andcreate action plans which require the mental alertness she nolonger has. Her condition has diminished her abihty to copewith the constant distractions of driving a school bus whileexercising sound judgment in the management students [jzc].

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She is no longer able to keep her Bus Driver's Certificate due tothe required DMV Medical Exam. She would fail this due tothe daytime sleepiness and use of the drug Provigil, which couldinterfere with the ability to drive a school bus safely.

Based on my experience with similar patients, it is by opinionthat Mrs. Anibaldi will not improve significantly enough tosafely drive a school bus.

Dr. Fox opined that Ms. Anibaldi 'Vould fail" the DMV exam; not that she had failedit, thereby making his opinion prospective. Additionally, Dr. Fox's report did not indicatethat he considered CalPERS's disability requirements when rendering his opinions.

21. A condensed medical timeline documented Ms. Anibaldi's complaints andmedical visits fi-om August 15, 2013, through September 14,2018.

22. Ms. Anibaldi submitted a folder containing her medical records and test resultsfrom 2013 through 2018. Dr. Vo's and Dr. Weber's reports only referenced records from2016 and 2017. While it does appear that the majority of the 2016 and 2017 records in thisfolder were reviewed by Dr. Vo and Dr. Weber, neither doctor referenced reviewing recordsfrom 2013,2014,2015, or 2018.

2013 Records

23. A September 5,2013, letter fi*om Raneth Heng, M.D., at Scripps Center forIntegrative Medicine, noted that Ms. Anibaldi was under his care with "debilitating fatiguethat makes it dangerous for her to operate a school bus with children in it for now." Heopined that it was "medically necessary for her to have a three-month medical leave ofabsence to help her improve her energy levels." In his November 21,2013, letter. Dr. Hengwrote that it was medically necessary to extend her medical leave an additional three monthsto help her improve her energy levels.

2014 Records

24. In his January 2,2014, letter Dr. Heng wrote:

Judy Anibaldi is a patient under my care. She has a medicalcondition that has contributed to debilitating fatigue in the past.This condition is completely treatable by taking certainsupplements and thyroid medication. She has already benefittedgreatly firom this treatment and has recovered 75% of her energysince November.

I believe that it medically safe [sic] for her to resume workinginitially doing the afternoon bus driving route for 3 wks, and

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then will be able to resume the regular morning and afternoonroutes thereafter. She is able to return to work in this fashion

starting Monday, Feb 3,2014.

Numerous records from 2014 document Ms. ,^baldi's complaints of fatigue, muscleachiness, weakness, inability to concentrate and note the treatment she had imdergone. AMay 21,2014, rheumatology consultation contained an impression of "persistent fatigue ofuncertain etiology with associated myalgias and sensation of generalized weaknessexacerbated post exercise, etiology uncertain."

2015 Records

25. An August 25,2015, family medicine note indicated that Ms. Anibaldi "may"have chronic fatigue syndrome. Other notes in 2015 documented that Ms. Anibaldi was'labeled with chronic fatigue."

2018 Records

26. A May 16,2018, report from Robert I. Fox, Ph.D.^, at the Scripps/XimedMedical Center Rheumatology Clinic, documented the history of present illness includingfatigue and "episodes that sound like narcolepsy." Dr. Fox took a history of present illness,performed a physical examination, and reached the following Impression:

1. Muscle fatigability. She has almost narcolepsylike symptoms that did respond to Provigil. However, she hadunusual sensitivity, and thus, a trial of another agent such asAdderall might be warranted.

2. Muscle bum suggestive of lactic acid. She hasweakness on progressive activity. Thus, we will screen her formyasthenia gravis. She has seen Dr. Leah Levy, who did notnotice features of myasthenia.

3. Peripheral neuropathy. She has decreasedstocking and glove, as well as ataxia. Therefore, we will screenher for celiac sprue, as well as check her B12, given that she isknown to be heterozygous for the C-17 variant.

4. Atypical chest and muscle symptoms, particularlywhen she is lying flat.

Dr. Fox's Plan was: "Lyme serology; myasthenia gravis; urine; organic acids, celiacspme, and B12; we will get a copy of her prior pulmonary function tests and her prior cardiac

This report only had the title "Ph.D.," unlike the September 24,2018, report.

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echo. We will see her back in 2 to 3 weeks for reports after these labs are available."Nothing in Dr. Fox's report stated that Ms. Anibaldi was unable to perform her job duties.

The results of lab tests from 2018 documented elevated pyruvic acid, lactic acid, andammonia levels. A follow-up note from Dr. Fox on June 21,2018, noted impressions of"probably mitochondrial myopathy," "status post eyelid," "pre-Hashimoto," and "executivefunction." Dr. Fox's September 14,2018, note contain impressions of Hashimoto's,narcolepsy, and "Nuvigil in past." Again, nothing in either one of these reports stated thatMs. Anibaldi could not perform her job duties.

A September 14,2018, San Diego Gas and Electric (SDG&E) Medical BaselineAllowance Application, completed by Dr. Fox, indicated that the medical devices used inMs. Anibaldi's home were "heating/air-condition," requiring the medical baseline allowancefor heating and cooling. As noted on the SDG&E form, a medical baseline allowance isavailable to SDG&E customers when "additional heating or cooling is medically necessaryto sustain the patient's life or prevent deterioration of the patient's medical condition."

None of these records contained any notation that Ms. Anibaldi's treaters determinedthat she was unable to perform her job duties.

Witness Testimony

27. Ms. Anibaldi testified about her condition, her treatment, and how hercondition affected her ability to perform her job duties. She explained that she cannotmaintain her license to operate a school bus because of her medical condition but producedno evidence that any official has ever revoked her license or denied her license application.She was referred to Dr. Fox, a highly recommended rheumatologist, who began treating herafter her CalPERS's examinations by Dr. Weber and Dr. Vo. Although Dr. Fox did notdiagnose chronic fatigue syndrome, he has been treating her for all the symptoms whichresulted in her being unable to work and led to her filing her disability retirement application.Ms. Anibaldi hoped that the name she gave her medical condition on her application,"chronic fatigue," would not affect her ability to receive a disability retirement. Ms.Anibaldi testified that her condition is currently the same as when she stopped working. Sheadmitted that no physician has ever told her not to drive a vehicle but she limits her drivingand only does so when she feels "well enough" to drive.

28. Ms. Anibaldi's daughter testified that her mother is not a physician but did thebest she could to put her disability application together and describe her symptoms to herphysicians and to Dr. Weber and Dr. Vo. Her mother was given multiple tests to performand multiple prescriptions as they tried to treat her symptoms. Many of those medicationscaused additional symptoms. Her mother stopped driving a school bus because she did notwant to injure any children, something she appreciates since she, herself, is a mother. Hermother has now found new physicians and the daughter wishes that they had those recordswhen her mother initially filed her disability retirement application. She also wishes that hermother had been seen by physicians who specialize in chronic fatigue syndrome who could

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have given her the proper diagnosis that she now has. She hopes that her mother can haveher application granted.

LEGAL CONCLUSIONS

Burden and Standard ofProof

1. Absent a statutory presumption, an applicant for a disability retirement has theburden of proving by a preponderance of the evidence that he or she is entitled to it. {GloverV. Board of Retirement (1989) 214 Cal.App.3d 1327,1332.)

2. "'Preponderance of the evidence means evidence that has more convincingforce than that opposed to it.' [Citations.] The sole focus of the legal definition of'preponderance' in the phrase 'preponderance of the evidence' is on the quality of theevidence. The quantity of the evidence presented by each side is irrelevant." {Glage v.Howes Firearms Company (1990) 226 Cal.App.3d 314, 324-325.) "If the evidence is soevenly balanced that you are unable to say that the evidence on either side of an issuepreponderates, your finding on that issue must be against the party who had the burden ofproving it [citation]." {People v. Mabini (2001) 92 Cal.App.4th 654, 663.)

Purpose of CalPERS's Laws

3. The court in Lazan v. County of Riverside (2006) 140 Cal App 4th 453,examined the purpose of CalPERS legislation, noting it serves two objectives: inducingpersons to enter and continue in public service, and providing subsistence for disabled orretired employees and their dependents. A disabihty pension is intended to alleviate theharshness that would accompany termination of an employee who became medically unableto perform his or her duties. Generally, CalPERS legislation is to be construed liberally infavor of the employee to achieve these objectives. Moreover, eligibility for retirementbenefits does not turn upon whether the employer dismissed the employee for disability orwhether the employee voluntarily ceased work because of disability. {Id. at p. 459.)

Applicable Code Sections

4. Government Code section 20021 defines "Board" as "the Board of

Administration of the Public Employees' Retirement System" (CalPERS).

5. Government Code section 20026 provides:

"Disability" and "incapacity for performance of duty" as a basisof retirement, mean disability of permanent or extendedduration, which is expected to last at least 12 consecutivemonths or will result in death, as determined by the board, or inthe case of a local safety member by the governing body of the

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contracting agency employing the member, on the basis ofcompetent medical opinion.

6. Government Code section 21150, subdivision (a), provides that a member whois "incapacitated for the performance of duty" shall receive a disability retirement.

7. Government Code section 21156, subdivision (a)(1), requires CalPERS toimmediately retire an employee for disability if the medical examination or other availableinformation demonstrates that the employee is incapacitated physically or mentally for theperformance of his or her duties and is eligible to retire for disability. Subdivision (a)(2)requires the board to make its disability determination "on the basis of competent medicalopinion."

Appellate Authority

8. "Incapacitated" means the applicant for a disability retirement has a substantialinability to perform his or her usual duties. When an applicant can perform his or hercustomary duties, even though doing so may be difficult or painful, the public employee isnot "incapacitated" and does not qualify for a disability retirement. {Mansperger v. PublicEmployees' Retirement System (1970) 6 Cal.App.3d 873: Sager v. County ofYuba (2007)156 Cal.App.4th 1049,1057.)

9. Unlike the right to a widow's or widower's pension that accrues upon theemployee spouse's death, the right to a disability retirement does not automatically ariseupon the happening of an injury. Rather, the injury must result in the employee being sophysically or mentally disabled as to render retirement from active service necessary. Theillness or injury is not the controlling factor, but, rather, the resulting inability to perform thework. The employer's duty to find the disability does not attach nor is the right to adisability finding created until that further point of time is reached. The disability findingcannot be made without a determination of the results of the injury, the condition of theemployee, and the necessity for the retirement. {Jyra v. Board of Police and Fire PensionCommissioners of City of Long Beach (1948) 32 Cal.2d 666, 671, citations omitted.)

Precedential Decisions

10. CalPERS filed a request that Official Notice be taken of three precedentialdecisions. Government Code section 11425.60 authorizes agencies to designate decisions asprecedential that contain "a significant legal or policy determination of general applicationthat is likely to recur." Precedential decisions may be expressly relied upon by theadministrative law judge and the agency. Official Notice was taken of In the Matter oftheApplication for Reinstatementfrom Industrial Disability Retirement of Ruth A. Keck (OAHNo. L-1990 9120097), In the Matter of the Application for Reinstatementfrom IndustrialDisability Retirement of Willie Starnes (OAH No. L-1990 906-0537), and In the Matter ofthe Application for Reinstatementfrom Industrial Disability Retirement of Theresa V. Hasan(OAH No. N-1990 910-0099).

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In the Matter of the Application for Reinstatementfrom Industrial DisabilityRetirement of Ruth A. Keck involved an injured school district clerk typist and stands for theproposition that the difficulty performing a task is insufficient to prove eligibility fordisability retirement, competent medical evidence is required to establish disability, and anemployer cannot terminate a CalPERS member for medical reasons after CalPERS hasdenied a disability retirement.

In the Matter of the Application for Reinstatementfrom Industrial DisabilityRetirement of Willie Starnes involved an injured CHP officer whose employer-retainedphysician determined he could not return to work but the CalPERS-retained physiciandetermined that he could. The decision stands for the proposition that the opinions of theCalPERS-retained physician, who offered competent medical evidence and who applied theCalPERS industrial disability criteria, were the correct opinions.

In the Matter of the Application for Reinstatementfrom Industrial DisabilityRetirement of Theresa V Hasan involved an injured parole agent and stands for theproposition that prophylactic limitations are insufficient to support a finding of disability andcompetent medical evidence must be offered to establish that claim.

Evaluation

11. In order to qualify for a disability retirement, Ms. Anibaldi must demonstrate,based on competent medical opinion, that she was permanently disabled or incapacitatedfrom performing the regular and customary duties of a bus driver when she filed herapplication. The evidence demonstrated that Ms. Anibaldi has a rheumatologic condition,has received treatment for that condition, and is currently undergoing treatment, but theevidence did not establish that she was permanently disabled or incapacitated fromperforming her regular and customary job duties. She did not introduce competent medicalopinions to support her claim.

Dr. Fox did not testify and his reports, as well as the medical records offered by Ms.Anibaldi, were received as administrative hearsay. Thus, they were only considered to theextent they supplemented and/or explained other non-hearsay evidence. (Gov. Cod, § 11513,subd. (d).) Unless admissible over objection in civil actions, hearsay evidence shall not besufficient in itself to support a finding. {Carl S. v. Commission for Teacher Preparation &Licensing (1981) 126 Cal.App.3d 365, 371.) Hearsay evidence is not competent evidencethat can independently support a finding. {McNary v. Department of Motor Vehicles (1996)45 Cal.App.4th 688.) The reports from Ms. Anibidi's treating physicians containingopinions regarding her condition and her ability to perform her job duties cannot beconsidered because they do not supplement or e>q}lain any non-hearsay evidence and are not,in and of themselves, competent medical evidence. As such, her application must be denied.

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Cause Exists to Deny the Application

12. Cause exists to deny Ms. Anibaldi's application for a disability retirement.Ms. Anibaldi failed to prove by a preponderance of Ae evidence that she was permanentlydisabled and incapacitated from performing the regular and customary duties of a bus driveras a result of her rheumatologic or cardiologic conditions when she filed her application for adisability retirement with CalPERS.

ORDER

The application for a disability retirement filed by Judy Anibaldi with the CahfomiaPublic Employees Retirement System is denied. CalPERS's denial of Ms. Anibaldi'sapplication is affirmed.

DATED: November 1, 2018

OocuSigned by:

1AD7BD68C0A6483...

MARY AGNES MATYSZEWSKI

Administrative Law JudgeOffice of Administrative Hearings

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