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. 
Fighting for the Rights of Disabled Public Employees

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
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. 
Fighting for the Rights of Disabled Public Employees