For those in PERS, the legislature has given police officers and firefighters, who are no longer able to perform their duties, due to work related injuries, the option to receive an industrial disability, usually 50% of their pensionable compensation. Moreover, the State and Federal Government do not tax this benefit as income. The Courts have required only a small connection between the disability and the employment in order to qualify.
Elements Necessary for Establishing Permanent Disability
For public safety members in PERS, disability “means the SUBSTANTIAL inability of the applicant to perform his usual duties” Mansperger v. Public Employees Retirement System (1970) 6 Cal.App.3d 873, 876-877.
What if Employer has Another Job for You?
An employer may defeat a disability retirement if an “appropriate” modified job has been offered “in lieu” of the disability retirement. To be considered “appropriate” the employer must prove the following;
1. A position was actually offered;
2. The position is within the physical and emotional restrictions imposed by the treating doctors;
3. The position is a police position or fire position;
4. The position is a permanent one;
5. The officer will receive the same salary and fringe benefits;
6. The officer will have the same promotional opportunities as other employees in the police officer classification.
When Should You File for Disability Retirement?
AS SOON AS YOU THINK YOU QUALIFY.
Government Code § 21154 requires that “The application shall be made only (a) while the member is in state service, or (b) while the member for whom contributions will be made under Section 20997, is absent on military service, or (c) within four months after the discontinuance of the state service of the member, or while on an approved leave of absence, or (d) while the member is physically or mentally incapacitated to perform duties from the date of discontinuance of state service to the time of application or motion. On receipt of an application for disability retirement of a member, other than a local safety member with the exception of a school safety member, the board shall, or of its own motion it may, order a medical examination of a member who is otherwise eligible to retire for disability to determine whether the member is incapacitated for the performance of duty. On receipt of the application with respect to a local safety member other than a school safety member, the board shall request the governing body of the contracting agency employing the member to make the determination.
If there is an administrative investigation pending and you are ultimately terminated, filing for the industrial retirement before the termination does not always guarantee you will get the retirement. The City may argue that, given the termination, you were no longer eligible for the job and therefore there was nothing to retire from. In any case, the sooner the better. Also, having the application filed will enhance your discipline attorney’s ability to settle your case, with perhaps the inclusion of the disability retirement.
Dammeier Law Firm will prepare the necessary documents to file for your disability retirement and if necessary, represent you at the hearing, should the City fight you on it.
If you would like Dammeier Law to file for and/or fight for your industrial retirement and other pension rights, please contact us.
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