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