Employment and Disability Pension FAQs
How does my disability pension case differ from
my workers' compensation case?
A disability pension (DP) case picks up where
your workers’ compensation (WC) 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 illnesses.
How are attorney fees paid?
Unlike workers' compensation or personal injury
cases, the pension systems do not pay the attorneys'
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.
What percentage of cases do you win?
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 employee is claiming psychological stress
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
Is there a consultation fee?
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.
What is the value of my disability retirement?
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 of your annual salary with no ordinary
income tax, either State or Federal, for your
life and that of your survivors.
How do I know if I have a good case?
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 do not win, requires
that we accurately forecast our ability to win
the case. However, there are factors which 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 financial pressure to find in favor
of the party that hires them, i.e., the pension
system. Furthermore, the pension systems usually
refuse to accept the treating doctor's opinion
or even the opinion of an Agreed Medical Examiner.
Instead, the pension system will often hire what
it calls an "independent medical examiner" which,
from our perspective is actually the opposite.
The truth is that the system is "stacked" against
an employee applicant. Despite the considerable
obstacles, we continue to successfully handle
hundreds of retirement applications and hearings
Doesn't the system have a duty to treat me fairly?
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 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 do
not fear any damage awards.
What is the penalty for withdrawing my pension
contributions if the employer has cut off all
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.
Pension Application Questions
What are the criteria for applying for a disability
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 been
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.
When should I apply for retirement?
An employee should apply for disability retirement
when the treating doctor(s) has imposed permanent
work restrictions which the employer says cannot
be accommodated. It is important that the employee
try to obtain the employer's 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.
Do I need an attorney to handle 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
payments to survivors, annual cost of living
increases, right to medical benefits and tax
free status. It is not unusual for disability
retirement benefits to range in value over an
expected lifetime from hundred's of thousands
to over a million dollars. If you would not represent
yourself in a workers' compensation application,
why would you risk losing a much larger 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.”
How much does it cost?
Attorneys' fees are not paid by the pension systems.
Fees are negotiated on a case by case basis.
Such fees can be based on a per hour basis, a
flat fee basis, a contingent basis or a combination
of these arrangements. We try to handle most
cases on a contingent basis with a fixed upper
limit. The actual fee charged depends on the
circumstances of each case and is always stated
in a written fee agreement signed by the client
and the firm before the case is accepted.
How long does the application process take?
There are many different procedures being used
by the various pension systems throughout California.
From the time that the application is filed,
it can take from 1 - 2 years before the pension
system decides whether to accept or deny the
If I am offered a modified position, do I have
to accept it?
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 employee's
behalf. Once of the typical defenses against
granting a disability retirement is that the
employee could have worked at some other position.
Can I work at another job while my application
is being processed and my employer is not paying
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.
What happens if my application is denied?
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.
If I win, when will I get my money?
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
employment and disability attorneys of Faunce,
Singer & Oatman practice in the area of
discrimination and disability retirement benefits for
private as well as public state, county, city and special
district employees of California. Our employment and disability lawyers
employees retirement system legal services to many clients in
San Bernardino County, San Diego County, Orange County, Riverside
rest of Southern California, and statewide, including
employees of CERL and CalPERS in Temecula, Santa Barbara,
Santa Ana, Oceanside, Escondido, Corona, Palm Springs,
Bakersfield, El Centro, Ontario, as well as San Bernardino
County, Orange County, San Diego County, Kern County,
Santa Barbara, Ventura County, Los Angeles County,
Contact Faunce, Singer, & Oatman
Employment and Retirement Disability Attorneys