Clever Tricks Used by Retirement Systems

Under the County Retirement Act, there is a provision that allows for members to make a claim for when their disability retirement benefits should begin that is before the date the member actually applies. This provision, Government Code § 31724, provides in part, that if the member did not know that their disability (injury) would prevent them from ever returning to work permanently at the time they last received regular compensation (that includes annual leave, sick time, vacation time) that their applications should be deemed filed the day after they last received this pay. This means that the disability retirement benefit would begin to be paid retroactively before the date the member applied. Many times this can be a substantial retroactive benefit. The reason for this statutory provision is to alleviate the hardship on the member that was inflicted because of the loss of salary due to the injury which prevented them from work.

Recently a San Diego County Employees Retirement Association representative argued to its Board that a date used by its member when answering a question in its application for disability retirement benefits, prevented that member from seeking this retroactive benefit. The question merely asked for the date when the member first learned he/she was unable to perform his/her usual duties. The representative argued that the answer showed that the member knew he/she was permanently unable to work a year before he applied thus he/she should be denied the retroactive benefit because he/she should have applied back then. However, the question did not ask when did the member know he/she was permanently unable to do his/her job. The question in the application merely asked when did the member first know they were unable to perform the full duties of their job.

The retirement system’s application fails to explain how it will use the member’s answers against him/her to prohibit much needed benefits. In fact, members routinely first learn that they cannot perform full duties of their job when they are initially hurt because that is when their doctors and / or employer remove them from working their full duties. Obviously, that would be one of the first dates one learns they cannot perform their full duties. Their condition may wax and wane over the following months during treatment allowing them to return to modified work for a time and then be removed again. There are often many dates that they find themselves unable to perform their full duties until ultimately their condition becomes permanent. Once their medical condition becomes permanent the employer is legally obligated to determine whether it can permanently accommodate the member. That is a much different scenario then when did one first learn they could not perform their full duties. None of this is explained by the retirement system when asking this seemingly innocent question that what they want is when did the member learn they would be permanently unable to perform their usual duties.

Once the member tries to answer the question to what he believes the ambiguous question means, the retirement system decides to interpret the question and answer to mean something it does not say. This is done no less than by a fiduciary required to act with the utmost of good faith and fair dealing. In fact, in this scenario the fiduciary representative did nothing to clarify that the question was ambiguous and did not bother to clarify to its Board that the question said nothing about permanency. Instead it left its misrepresentation of what was asked remain that the member said he/she knew they were permanently unable to do the job on the date answer even though its question said nothing about being permanent. And a representative again repeated the same argument to the system’s hearing officer. This did not trouble anyone except the member who is being impacted and all the members that will follow if this argument is successful.

These little misrepresentations occur and they seem so innocent but are a far cry from innocent. Members should be appalled that fiduciary systems make these misrepresentations and severely cost members benefits that are needed to survive. Applicant’s need to be aware that the staffs at the retirement systems are trained to do what it can to minimize the amount of claims against it.

Jane H. Oatman, Esq. 
FAUNCE, SINGER & OATMAN
Fighting for the Rights of Disabled Public Employees
http://www.public-pensions.com
1-800-874-2284

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Orange County Employees’ Retirement System and County Retirement System General Information

The Orange County Employees’ Retirement System and all other County Retirement Systems offer both retirement for service and disability. Disability or Medical Retirement become available in the event your medical condition renders you unable to perform your job.

If you become permanently disabled from your job you may have benefits available from your employment membership with the Orange County Employees’ Retirement System. Permanent disability means that your medical condition renders you unable to perform your job for an uncertain and extended time.

There are two types of disability retirement benefits available from the Orange County Employees’ Retirement System:

1. Non-service Connected Disability Retirement. If you have an injury or illness that causes you to be permanently physically or mentally disabled from performing the usual and customary duties of your job classification and you have 5 or more years of service credit, you may be eligible for this benefit. Non-Service means that your injury or illness is not caused or exacerbated by your job.

It is not automatic. You will have to prove to OCERS that your injury or illness permanently incapacitates from your job. That usually means that you have permanent work restrictions that are incompatible with your job that your employer will not accommodate.

When your condition is non-work related you will most likely not have forensic (med-legal) medical evidence to prove your disability from your job. You may only have chart notes or medical notes from your doctor that are not substantial in nature to prove your disability. Therefore, it is important that you understand what medical evidence you need to provide overall to OCERS to make the best possible claim to OCERS to prove you are disabled.

Many times employees fail to consider whether their job has caused or exacerbated their injury or illness. Thus, you may want to have a detailed job duty description available to discuss this potential effect of your job on your injury or illness with both your legal representative and doctors before you conclude your condition is not service-connected.

2. Service-Connected Disability Retirement: This benefit does not require that you have any specific amount of service-credit accumulated. Therefore, if you have an injury or illness that causes you to be permanently physically or mentally disabled from performing the usual and customary duties of your job classification AND your employment contributed to you being permanently incapacitated from your job in a “real” and “measurable” way, then you may be eligible for this benefit.

This benefit requires two findings. First, that you are permanently incapacitated from your job because of your illness or injury. Second, if so, then whether such permanent incapacity is caused in a real and measurable way by your job.

Under either the service-connected or non-service connected disability retirement benefit, the retirement system in most instances will have you evaluated by their routinely used doctors. These doctors are selected by the retirement systems. They are mainly doctors used to defend systems against claims. When the doctors are considering whether you are disabled from your job, typical defenses used to find you not disabled include that you are not as disabled as you claim, you are malingering, its because of your age or your problems are only subjective and cannot be confirmed by the objective medical evidence. There are a myriad of typical defenses that are used to defeat claims.

When pursuing your benefit, it is important you have your doctor prepared to complete the requisite form and, if necessary, prepared to assist to provide any further opinions to substantiate your claims. It is important you discuss your doctor’s willingness to complete forms and review material in connection with your disability retirement matter early on as many times doctors are reluctant.

The OCERS and all retirement systems also has on staff several attorneys trained specifically to defend against claims. They routinely handle the defense of these claims and know the pitfalls unwary applicants may fall into.

Jane H. Oatman, Esq.
Faunce, Singer & Oatman
http://www.public-pensions.com
1 (800) 874-2284

I Can’t Believe They Denied My Industrial Disability / Medical Retirement

Why would CalPERS or the County Retirement Association deny a disability / medical retirement application?

Denials are frequent. The retirement system hire defense doctors, referring to them oftentimes as “Independent Medical Examiners”, even though they are hired, paid for by and used repeatedly by the retirement system. Thus, the label “Independent” is misleading. These defense doctors are used to evaluate its members following their applications for benefits. These doctors are routinely used for the purpose of defending against claims for insurance companies, workers’ compensation carriers, and for retirement systems. Thus, the defense doctors understand that if they can deny benefits for their employers, their referrals will continue.

Therefore, it is very important that once you are evaluated by a doctor on behalf of CalPERS or the County Retirement Systems, that you take steps to get a copy of the doctor’s reporting regarding your evaluation. It will provide you with the information in most cases as to why you were denied.

Although reasons vary, many times the claims are based upon the fact that you are older, obese, or had an injury in your past, that the doctor can claim is the “real” reason you have your current disability from work despite having injuries actually occurring on the job. Other common reasons to deny claims is that your injury is not bad enough to disable you claiming you are exaggerating your injuries or are a malingerer and just want the benefit instead of working. Defense doctors also routinely state that your disability is merely based on your subjective claims of having pain, and that the objective findings cannot substantiate the pain you feel.

To most, a denial is shocking and frightening. Most employees have already been through a lengthy workers’ compensation process filled with denials and delays, and now they face more of the same. Most have been off of work for months or years. The employer has already advised them that it cannot accommodate the restrictions developed during the course of the workers’ compensation case. So how can CalPERS or the County Employees Retirement System now come to a completely different result?

Whether it is CalPERS or the County Employees Retirement System employees discover that it is an entity separate from their employer which makes its own determination many times opposite of that which was determined by the employer and the workers’ compensation system.

At the time of the denial a decision must be made whether to return to work or pursue an appeal hearing. It is beneficial for employees with disability / medical retirement rights to consult with an attorney handling such matters at the first time they believe that they will not be able to return to their prior job, but certainly once the retirement system has obtained a medical report against you, it is imperative that you get professional advice.

Jane Oatman, Esq. 
FAUNCE, SINGER & OATMAN
Fighting for the Rights of Disabled Public Employees
http://www.public-pensions.com
1-800-874-2284

Timing is Important

One of the ways the retirement systems “nickel and dime” injured workers, is to make the effective date of the disability retirement as late as possible. Thus, if an injured worker is taken off payroll during a workers’ compensation case and months, or even years, later files for disability retirement, the retirement system will try to ignore those months and years of uncompensated time by making the effective date of the retirement the same as the date it received the disability retirement application.

For county employees, the unfairness of this practice was legislatively corrected by providing for an earlier effective date than the date the application was actually filed. Thus, if an injured worker delays in filing their application beyond the day after the last day of regular compensation, the application is deemed filed on the day after last regular compensation. But, once the injured worker knows that they cannot return to the actual duties they were performing, an effort should be made to get the employer to agree and file for the disability retirement, or the worker will have to file their own application. In any case, once the decision is made that you are disabled, prompt action on a disability retirement application is advisable.

Delay in filing your disability retirement application can be costly. The County Retirement Act provides that the effective date of your disability retirement benefit shall be the date of your application. The effective date may be earlier than the date of your application if you can prove that you delayed filing because of administrative oversight or you were unable to determine that your disability was permanent until a date after you last received regular compensation.

It may be beneficial to you to have your application effective earlier than the date of your application when you have a lengthy period where you received only workers’ compensation benefits or no benefits prior to the date you filed the application. That way you can recover back disability retirement benefits you would have received had you filed at the time you last received compensation from your employer. The earlier date, however, may decrease your monthly benefit so it may be important that an assessment be made whether actually obtaining the earlier date is most advantageous in the long run financially.

It is very important to know when you last will receive regular compensation. For example, you need to know when exactly your sick, vacation, comp time and holiday time will be end so you can time your application. Regular compensation includes contributions to supplement your workers’ compensation benefit from your sick pay, vacation pay and industrial leave compensation if your employer provides such a benefit.

This means that if you are off work and you continue to receive pay in the form of regular compensation from your employer excluding workers’ compensation pay such as temporary or permanent disability payments, and your doctor deems your condition permanent you need to immediately determine whether disability retirement is an option for you and apply. Otherwise you may lose valuable benefits.

Jane Oatman, Esq. 
FAUNCE, SINGER & OATMAN
Fighting for the Rights of Disabled Public Employees
http://www.public-pensions.com
1-800-874-2284

 

 

IMPORTANT TO KNOW YOUR TREATING DOCTOR IS COOPERATIVE

Many public employees are in a dilemma, with no easy fix, because their treating workers’ compensation doctors will not assist them by completing required disability retirement forms. Retirement systems will not accept or process applications without required doctor forms being completed. The disabled employee is subjected to financial hardship simply because of the treating doctor’s lack of cooperation. 

From the date an injured worker is referred for medical treatment, the doctor must determine whether the injured worker is medically unable to perform their usual job duties. In the past, the treating doctor would complete the required forms for applying to get disability retirement. Now, many doctors simply refuse to cooperate.

Public employees be aware, from the onset of your injury, whether you believe that your injury will result in permanent restrictions preventing you from continuing to perform the duties you were last performing on your job. If you suspect that you may be unable to return to those duties, then your treating doctor must be willing to fill out the required disability retirement forms which are outside of the workers’ compensation system. Your employer, and its workers’ compensation carrier, in picking treating doctors has done nothing to insure that their doctors will help you in obtaining disability retirement. Neither will they help you, in most instances, get their doctors cooperation in applying for disability retirement. 

Your disability retirement benefit may be the only benefit you will have available to assist you financially for the long term. You should discuss with your treating doctor immediately upon referral, whether s/he and their office staff will help you in the event your injury results in need to seek disability retirement. 

It may even be prudent to see what steps you need to take to get a new treating doctor that will take care of your additional and future needs.

 

Jane Oatman, Esq.
FAUNCE, SINGER & OATMAN
Fighting for the Rights of Disabled Public Employees
http://www.public-pensions.com
1-800-874-2284

USUAL DUTIES MUST BE DETERMINED FOR DISABILITY RETIREMENT

Determining “usual duties” is required before deciding whether a member is permanently incapacitated from their job. An employee’s usual duties are the job functions that s/he must be able to perform. If the employee has work restrictions, those work restrictions are compared to the usual duties in order to determine whether the employee is able to perform their job.  Many times an employee’s usual duties is a main issue at disability retirement hearings.

Job classifications are broad and contain many examples of expected job duties. However, usual duties are not necessarily restricted to one’s last job assignment, but rather by the ability to perform all the required tasks of a particular job classification. Therefore, it is critically important establish the actual job requirements. The employer’s position, as to whether it can accommodate the injured employee, is critical to the disability determination. If an employee retires or severs their employment status before the disability retirement claim is complete, obtaining that critical evidence is compromised.

CalPERS has taken the position that its members are not substantially incapacitated from their jobs if they can perform their most recent specific duties. For instance, recently CalPERS took the position that a CHP Officer, who worked as a Public Affairs Officer, was not substantially incapacitated from his CHP job because his disability did not prevent him from continuing to perform those lighter duties. The Officer, however, argued that his disability did prevent him from carrying out the 14 critical tasks required of all CHP Officers. The Court of Appeal agreed with the Officer and said that he had to be able to fulfill all of the required tasks not just those of a Public Affairs Officer. In fact, a state statute required that the Officer must be able to perform all the required duties each and every day.

Retirement Systems will often obtain medical opinions that contradict the member’s doctor’s opinions. Such disagreements are often based on the Retirement System’s Medical Advisor’s opinion as to what duties are required and also ignores the employer’s ability to accommodate the injured employee’s restrictions. These contradictions created by the Retirement System’s medical experts must often be challenged before the injured employee retires for service or otherwise severs their employment. Once the employment relationship is severed, the injured worker only gets one opportunity to prove entitlement to disability retirement.

Jane Oatman
Faunce, Singer & Oatman
Fighting for the Rights of Disabled Public Employees
http://www.public-pensions.com
1-800-874-2284

 

California Law Provides for Limited Reinstatement

The California statutory law governing Orange County members of the retirement system, provides for a limited reinstatement following a denial of a disability retirement:

31725. Permanent incapacity for the performance of duty shall in all cases be determined by the board.

If the medical examination and other available information do not show to the satisfaction of the board that the member is incapacitated physically or mentally for the performance of his duties in the service and the member’s application is denied on this ground the board shall give notice of such denial to the employer.
The employer may obtain judicial review of such action of the board by filing a petition for a writ of mandate in accordance with the Code of Civil Procedure or by joining or intervening in such action filed by the member within 30 days of the mailing of such notice. If such petition is not filed or the court enters judgment denying the writ, whether on the petition of the employer or the member, and the employer has dismissed the member for disability the employer shall reinstate the member to his employment effective as of the day following the effective date of the dismissal.
 
The California Supreme Court, in Stephens v. Cnty. of Tulare, 38 Cal.4th 793, (2006), interpreted the term “dismissed” saying that it means termination [and in so doing considered preceding case law to define what termination means].

In Stephens, after the Tulare County Retirement System’s final decision to deny Mr. Stephens a disability retirement, he sought reinstatement to his former job. Mr. Stephens was returned to his job as a Detention Specialist. This was not a lessor paying or different job, but was his actual last job classification. Mr. Stephens, however, filed a lawsuit seeking reinstatement of back pay and benefits for the time before he requested reinstatement and before the Retirement System’s final decision, during the time he was voluntarily off work because of his medical condition.

Thus, the Stephens’ court ​had to determine whether Mr. Stephens was entitled to retroactive reinstatement for the period of time ​from when Mr. Stephens voluntarily went off work ​up to the time of the Retirement System’s final decision denying his disability retirement. It is during that specific time that the Supreme Court determined Mr. Stephens was not dismissed (terminated) so he could not claim entitlement to reinstatement for that specific time period.

Since ​the ​Stephens ​decision, employers have ​pushed to expand its ​application so as to deny employees reinstatement following denial of disability retirement applications. Employers merely claim the employee was not terminated so it has not obligation to reinstate the employee to their job.

In January 2013, the County of Orange was successful in denying reinstatement to a deputy probation counselor to her job. In th​at​case, ​probation counselor was denied disability retirement by the Orange County Employees’ Retirement System and also denied reinstatement to her job as a deputy probation officer. She agreed she was disabled from her job ​because her disability did not magically disappear ​just ​because the Retirement System claimed she was not disabled from her job. She asserted though she was entitled to reinstatement to her safety status and equivalent pay given her disability retirement application was denied. The Court disagreed​ and said that because the plaintiff was physically unable to perform the duties of a deputy juvenile correctional officer II, the County did not refuse her request for reinstatement following a leave of absence, or, more accurately, that it did not wrongfully refuse her request to reinstatement because she was not dismissed. The Court ignore​d​the employee’s right to restoration to paid status by asserting that ​her right to reinstatement did not arise ​because the Court already had determined that she had not been dismissed.

However, the California Supreme Court in Stephens found that “a failure to reinstate an employee, following a period of permissive, voluntary leave, can constitute a ‘dismissal’ despite the absence of a formal termination or firing​.​” ​This latest case involving the Orange County probation counselor appears to conflict with the Supreme Courts ​pronouncement in its Stephens decision.

​The net result is that in Orange County an employee may be denied reinstatement if he or she is incapable of performing the duties of his or her former job and if other jobs, lessor paying alternative jobs, within his or her residual capabilities are available, he or she may be denied restoration to paid status because ​it is now permissible ​to claim that he or she ​was ​​never ​dismissed. ​The Orange County result appears to be in conflict with other applicable appellate decisions making this a matter of continued need to assess on a case-by-case basis.​

The California law firm of Faunce, Singer and Oatman has successfully handled thousands of cases related to labor law.   If you have had a denial of pension benefits, or been discriminated against, please contact the law firm of Faunce, Singer and Oatman at 1-800-874-2284.

Jane Oatman
Faunce, Singer & Oatman
Fighting for the Rights of Disabled Public Employees
http://www.public-pensions.com
1-800-874-2284