A disability pension (DP) case picks up where your workers’ compensation (WC) case ends. WC tries to get you medically rehabilitated to return to work, but if you are not able to return to your former job, then you may have a DP case. One other difference is that WC cases require that you have suffered an industrial injury or illness. DP cases may be based on non-industrial injuries or illness.
Unlike workers’ compensation or personal injury cases, the pension systems do not pay the attorney fees directly to the attorneys. The disabled employee is responsible for the payment of the fees. There are some limited circumstances under which a court can award reasonable attorneys’ fees and require the pension system to pay such directly to the attorneys.
We do not win all of our cases. However, we win often enough to allow us to handle most of our cases on a contingency basis. It depends on the type of case. For example an employee with a herniated disc and favorable witnesses to the job injury is a much easier case to win than an employee who has been terminated by the employer where the employee is claiming psychological stress and harassment. While we cannot control the pension systems’ decisions, we always try to give our clients the option of being returned to their job, or at least to the payroll, if the disability pension case is denied.
We do not generally charge a consultation fee for the attorneys or staff. On occasion, when it becomes necessary to review a large number of documents, especially voluminous medical reports, we will charge a flat fee for the time involved.
You can estimate the value of your case using dollar amounts for your annual compensation, the percentage of salary you would get, the life expectancy of you and your survivors and the tax benefits. Generally, disability retirements range from a low of around a third of your annual salary, taxed at ordinary income rates, to a high of half your annual salary with no ordinary income tax, either State or Federal, for your life and that of your survivors.
Our experience in handling thousands of cases helps us “weed” out cases which we do not consider meritorious. The fact that we handle most of our cases on a contingency basis, i.e., we do not get paid if we don’t win, requires that we accurately forecast our ability to win the case.. However, there are factors that are difficult to account for. For example, the County and City pension systems often hire the “judge” who hears the case. Such “judges” are under enormous pressure to find in favor of the party that hires them, i.e., the pension system. Furthermore, the pesion systems usually refuse to accept the treating doctors’ opinion or even the opinion of an Agreed Medical Examiner. Instead the pension system will often hire what it calls a “independent medical examiner” which, from our perspective is actually the opposite. The truth is the system is “stacked” against an employee applicant. Despite these considerable obstacles, we continue to successfully handle hundreds of retirement applications and hearings annually to work.
Sure they do. Probably the best way to “think” about the pension system is to consider it just another “insurance company.” Do you know any insurance companies that just voluntarily pay out substantial benefits without without the threat of large damage awards from juries? This is the problem with the public employee pension systems. They have not been held accountable by juries. Therefore, the pension systems can operate as they wish because they do not fear any damage awards.
If you withdraw your pension contributions, you have effectively resigned from the retirement system. You have no right to apply for a disability retirement or even a service retirement.
Actually, the decision to remove an employee for disability is primarily up to the employer and the employer should file for disability retirement rather than sending an employee home or refusing to allow them to return to work. Usually, the employer refuses or fails to initiate the application process. Therefore, when an employee has to be removed from their position because of work restrictions or by an offer of vocational rehabilitation, an immediate decision whether to file for disability retirement should be made.
An employee should apply for disability retirement when the treating doctor(s) has imposed permenant work restrictions which the employer says cannot be accommodated. It is important that the employee try to obtain the employers written decision as to whether the employee will be returned to his/her former job before applying. Even then, the employee should request that the employer also file an application for disability retirement.
Your retirement may be the largest asset you have. Disability pensions are usually paid for the rest of your life on a monthly basis and may also include additional benefits such as payment to survivors, annual cost of living increases, rights to medical benefits and tax free status. It is not unusual for disability retirement benefits to range in value over an expected lifetime from hundreds of thousands to over a million dollars. If you would not represent yourself is a workers’ compensation application, why would you risk losing a much greater asset by failing to obtain legal assistance? The pension systems have claims adjusters, attorneys and doctors to assist in denying DP claims. Most employees are well advised to get “someone in their corner.”
Attorney fees are not paid by the pension systems. Fees are negotiated on a case by case basis. Such fees can be based on an hourly basis, a flat fee basis, a contingent basis or a combination of these arrangements. We try to handle most cases on a contingency basis with a fixed upper limit. The actual fee charged depends on the circumstances of each case and is always stated in a written agreement signed by the client and the firm before the case is accepted.
There are many different procedures being used by the various pension systems throughout California. From the time the application is filed, it can take from 1 – 2 years before the pension system decides whether to accept or deny the application.
There are circumstances in which a modified job offer may be inappropriate. For example, if the treating physician has imposed work restrictions which are incompatible with the job offered, then the employee is placed in an untenable situation. In such a case, it is imperative that a clear and adequate record be made on the employees’ behalf. One of the typical defenses against granting a disability retirement is that the employee could have worked in some other position.
Yes, but it is risky if not handled properly. It is essential that the employer be requested to assist the applicant while the process of reviewing the application is underway. If the employer refuses, that refusal must be recorded and any outside employment should be disclosed to the employer. This is particularly true of police personnel who often have the requirement to obtain approval for any “outside” employment from their Department.
There are several options. First, the applicant may often request to be reinstated to their prior position. If the employer removed them, the applicant may even be entitled to back pay and benefits. Second, the applicant can request a formal administrative hearing. This is usually heard by a hearing officer hired by the pension system or by an administrative law judge in the case of a PERS applicant.
The various pension systems do take differing amounts of time. However, once approval has been given, the disability pension is usually paid within thirty to sixty days and then monthly thereafter.
We will discuss the merits of your case and give you an honest assessment. We can also represent most clients on a contingency fee basis
Faunce, Singer & Oatman
301 E. Colorado Blvd.
#600 Pasadena, CA 91101
Tel: +1 (800) 874-2284
Fax: +1 (800) 874-2284
CalPERs Sworn Employees
CalPERs Non-Sworn Employees