The Hidden Gem in Your LSP Coverage

By:  Steven W. Welty, ESQ., Senior Associate Attorney, Mastagni Holstedt, APC

 

Many Legal Services Plan (Plan) members are unaware that the Plan provides coverage for representation regarding disability retirement appeals. This coverage is significant. As upper level managers and department heads, you are generally older and in the latter years of your career. As we all know, seldom does your medical condition improve with age. As such, you are more likely to encounter problematic medical issues, than to face disciplinary or criminal issues. Keep in mind that the Plan provides an invaluable resource during these uncertain circumstances.

Generally, most members participate in two types of retirement systems. The California Public Employees’ Retirement System (CalPERS) provides disability retirement benefits to state employees, contracting cities, and contracting counties. Some of the larger counties have established their own county retirement systems, commonly referred to as County 37 Act (37 Act) systems. Each system operates under different provisions of the California Government Code. While many of the rules are the same under both systems, there are significant differences that can effect a disability retirement application.

Both systems provide similar benefits for disability retirement. Both systems utilize the same legal standards for determinations of permanent disability. However, the process for approving an application varies significantly. For instance, 37 Act systems have their own board of trustees and make decisions on disability retirement applications independently of any input from the county or the department involved. Whereas CalPERS delegates the application decision for public safety positions in contracting cities and counties to the city or county itself. In addition, 37 Act systems routinely send applicants to an independent doctor hired by the retirement system to conduct an examination and provide a medical opinion. Whereas cities and counties in CalPERS generally defer to the medical examiner in the workers’ compensation case, assuming it is a work related injury. Because of these differences, the approach to each system can be very different when attempting to obtain a disability retirement.

The benefits and tax implications vary drastically between work related and non-work related disability retirements. An additional consideration is whether a member can qualify for a combination of a service retirement and a disability retirement. Many Plan members have twenty or more years in the retirement system and have surpassed the minimum age to be eligible for service retirement. In such cases, the combination of a service / job-related disability retirement can be the superior option from a financial standpoint. However, timing is crucial for such an application to be viable. Members only qualify for disability retirement if the medical condition is incapacitating prior to separation from employment. I cannot tell you how many times I have had discussions with managers who endured severe medical issues during their final years of employment and service retired due to the medical issues. Because they retired while in a full duty status, they were not qualified for a disability retirement. Even though the member often is informed during the next several months or years that they have become permanently disabled, they probably do not meet the requirements for a disability retirement.

Sometimes the member encounters the reverse scenario. Employers can unilaterally file for a member’s disability retirement. This scenario is especially problematic for members in cities and counties that contract with CalPERS considering the city or county then makes the decision on the application. The member then finds themself being unilaterally forced out of their job due to the employer’s assertion that the member is disabled. A decision to grant a disability retirement application can be appealed in the same manner that a denial of a disability retirement application can be appealed. In addition, an adverse determination regarding whether the disability is work related can be appealed.

These are some of the more common issues that can occur when members face significant medical issues that permanently interfere with the member’s ability to perform their job. Appeal of adverse decisions regarding a disability retirement application are a covered benefit under the Plan. I charge fee paying clients $15,000 to $20,000 for the same representation provided to members under the Plan as part of the normal Plan dues. We encourage you to use your Plan benefit to its fullest by conferring with your contract law firm with any questions on disability retirement determinations. In addition, members are encouraged to consult with the Plan’s contract law firm when retirement is near, to mitigate or avoid these and other issues that can occur. Generally, we can provide useful guidance in nearly every case.

 

The reader should not act on the information contained in this article without seeking specific legal advice on the application and interpretation of this information in any particular matter.

 

About the Author: Steven Welty focuses on labor and employment law representation, fitness for duty, and disability retirement litigation. He is a lead counsel for several law enforcement associations statewide.  Steve is an experienced litigator in peace officer discipline matters. He has represented hundreds of public safety clients in administrative investigations, disciplinary actions and appeals. He has tried cases in superior courts throughout California, the First, Third, Fourth, and Fifth District California Courts of Appeal, as well as the federal district courts, including the Ninth Circuit Court of Appeal. He has also litigated numerous administrative hearings before the California State Personnel Board, the California Office of Administrative Hearings, local agency civil service commissions, panels and boards. Steven was Police Officer of the Year for Yuba City in 1990 and was President of the Yuba Police Officers Association from 1991 to 1992.

 

 





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