General Information The attorneys at Faunce, Singer & Oatman have decades of expertise representing disabled members of CalPERS and County Retirement Systems all over the State of California. We represent miscellaneous employees, all state employees including state safety, CHP officers and personnel, police officers, firefighters, and deputy sheriffs who are members of the California Public Employee’s Retirement System (CalPERS) and the various County Employee’s Retirement Systems (CERL). We have over forty-five appellate and California Supreme Court cases attributed to our efforts and handle cases preferably from the application stage throughout the litigation process. We have found that the retirement systems have increasing efforts to enforce stricter guidelines and requirements for filing applications to prove timeliness including continuous disability in the event the member has delayed in filing since the last date worked or received regular compensation. Local safety officers have the added layer in that they must obtain the finding of disability and industrial cause from the agency which must adhere to mandates recently amended by CalPERS to qualify for the benefits. Systems, whether it be CalPERS or the County Retirement System’s, utilize its own doctors, in addition to the medical evidence that was developed in the workers compensation cases, to determine whether the member meets the standard of disability in the disability retirement arena. We have found that these physicians overlook providing work restrictions and merely provide legal conclusions to deny these benefits. A critical element in pursing these benefits includes a properly prepared application and evidence which could mean the difference in a granting of the application or a costly denial. When denied the member many times must hire medical experts to either prepare rebuttal reports and testify in person. A resignation or waiver of rights to reinstate can be detrimental to a member’s rights in the disability retirement arena. Our office can assist throughout this process and offer knowledge to avoid pitfalls routinely used to prejudice the member’s rights to disability retirement. We are available to help and if you would like to speak us, please call 760-451-7377.

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

CalPERS Denies Members Right to File Disability Retirement Claim

CalPERS Denies Members Right to File Disability Retirement Applications When the Member is Terminated

At times, CalPERS precludes its members from filing applications for disability retirement when it obtains information from its contracting agencies that the employee/member has been terminated from work. CalPERS relies on Haywood v. American River Fire Protection Dist., (1998) 67 Cal.App.4th 1292 to support its position. However, to preclude an application for disability retirement under CalPERS law, “a person must be terminated for cause and Haywood does not apply where the cause for the dismissal was the result of a disabling medical condition, or where the dismissal would be “preemptive of an otherwise valid claim for disability retirement.” Nonetheless, CalPERS staff still may recommend denying its member the right to file an appeal. This forces the member to request an administrative hearing to prove the dismissal was based upon disability and was not for cause.

In the case of Patton v. Governing Board, (1978) 77 Cal.App.3d 495, a bus operator was denied his sick leave request on the ground that he was fired from his bus driver position by the San Jacinto Unified School District because he no longer had a DMV certificate to drive a school bus. However, the District was aware of its bus operator’s continuing medical condition which was the only reason he did not have a DMV certificate to drive a school bus. The court said that the bus operator lost his DMV certificate to drive a bus solely because of his back disability. Therefore, the court determined that the member was actually terminated because of disability.

Thus, in a subsequent case to Haywood, Smith v. City of Napa, 120 Cal.App.4th 194, (2004), the court, “repeatedly cautioned that the Haywood holding would not apply where the cause for dismissal was the result of a disabling medical condition, or where the dismissal would be “preemptive of an otherwise valid claim for disability retirement.” The court specifically cited, the Patton case showing such a circumstance. The Smith Court also noted that there may be reasons why the member would be allowed to apply for a disability retirement because of the demands of fundamental fairness.

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

Pension Benefits Being Challenged in San Jose

It is becoming increasingly clear that retirement funds, pensions, and other post-work benefits are going to be harder and harder to come by. The denial of pension benefits and the cutting of many disability pension programs is a troubling trend. Recently, a case in the San Jose court has highlighted just how problematic it will be to create and implement effective pension reform.

The case involves the San Jose police union. Across the board budgetary cuts were approved by 70 percent of San Jose’s voting population at the last election. Some of these cuts included a reduction in pension for the police force. However, the police union is saying that this change in pension status violates the rights of union members, and that those rights cannot be affected by legislation.

The issue is a sticky one, as the San Jose city government is strapped for cash, and not cutting pensions will require deeper cuts in other areas. California labor law attorneys are watching the trial with interest. Depending on the outcome, it could have much wider implications regarding unions and workers’ rights in the future.

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

 

Do I need a lawyer to apply for my disability retirement?

Just asking this question assumes that applying for disability retirement is only a matter of filling out the proper forms.

“I’ll just file the forms and see what happens. After all, the nice person at the retirement system assured me that I won’t need to hire a lawyer because they will help me.”

Disabled workers often assume that their successful workers’ compensation claim means that their disability retirement matter will simply be granted. But just because the workers’ compensation system awarded benefits is NO guarantee that the retirement system will do the same.

Your retirement system is governed by different laws and administered by different persons. Retirement systems have their own rules, own consulting doctors, and own lawyers.

From the moment you contact the retirement system to apply for a disability retirement, the system is engaged in identifying the weaknesses in your claim and designing strategies to support its denial.

Even before your application is filed, we consider many issues:

* The timing of your application.

* Who should apply, you or your employer.

* Whether you are entitled to benefits that predate your application.

* Your employment status, i.e., whether you have been terminated, resigned, or offered accommodations.

* Whether your claimed permanent incapacity requires further medical development

* The value of a non-industrial and industrial disability retirement.

* Whether additional evidence is needed to establish a right to an industrial disability retirement.

Finally, ask yourself: “What’s at stake?” Your disability retirement benefit, if granted, will give you a monthly benefit that may last a lifetime. This benefit may be your most valuable asset. It is not likely that the retirement system’s staff will advise you on all these issues.