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Employment and Disability Pension FAQs

General Questions

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 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.

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 annually.

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 my funds?
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 pension?
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 application.

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 me?
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 thereafter.

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Disability Pension at Risk?
Contact Faunce, Singer, & Oatman
California ’s Employment and Retirement Disability Attorneys

The Southern California employment and disability attorneys of Faunce, Singer & Oatman practice in the area of employment, 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 provide disability, labor laws, county employees retirement association, CalPERS, and state employees retirement system legal services to many clients in San Bernardino County, San Diego County, Orange County, Riverside County, the rest of Southern California, and statewide, including employees of CERL and CalPERS in Temecula, Santa Barbara, Anaheim, 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, and Imperial County.