What You Need to Know
CalPERS Industrial Disability Retirement (IDR) for Safety Officers
by Pat McAleer, Partner
Here are five things that you need to know to be prepared to process a CalPERS application for industrial disability retirement (IDR) for safety officers:
1) Is your contract with the Office of Administrative Hearings (OAH) current?
2) Did you know that the agency can no longer delegate a final determination to an executive officer?
3) Are your dispute resolutions in current compliance with recent changes to the Government Code and any judicial determinations? If your dispute resolutions are older than five years, they should be reviewed to ensure current compliance.
4) Did you know that safety officers who are terminated for cause may not be eligible for an industrial disability retirement where the cause for termination occurs prior to vesting?
5) Did you know that, as of January 1, 2003, contacting agencies are required to advance disability pension payments until a decision has been made to approve or disapprove a member’s application for industrial retirement? Do you know the procedures for recouping pension payments in the event of a denial?
The California Public Employees’ Retirement System (CalPERS) is responsible for the management of pension and health benefits for over 1.7 million California public employees, former employees, and their families. In recent years, CalPERS Industrial Disability Retirement (IDR) cases have become more frequently litigated as state and local governments have become increasingly diligent in their defense against inappropriate, and even fraudulent, claims of entitlement to IDR.
The standard for proving entitlement to IDR is a higher standard than that applied in workers’ compensation cases. A CalPERS member is eligible for IDR when the member is incapacitated from the performance of duty as a result of industrial disability. Not surprisingly, the exact meaning of this standard is not abundantly clear from the plain language of the statute. However, subsequent case law has shed some light on the courts’ interpretations of Government Code section 21150.
Essentially, in order to prove entitlement to IDR, the applicant bears the burden of showing that the CalPERS member (1) has disability of permanent or extended and uncertain duration based on a competent medical opinion, (2) the disability was caused by an injury or disease arising out of and in the course of the member’s employment, and (3) as a result of the disability, the member is substantially unable to perform his or her job duties.
The procedure for litigation of an application for IDR is also quite different than the procedure for litigation of a workers’ compensation claim, though there are some similarities. An application for IDR may be filed by either the CalPERS member or the employer if the employer believes the member to be disabled. Government Code section 21153. The identity of the applicant is important because it is the applicant who bears the burden of proof.
The application must be based upon a competent medical opinion in order to serve as the basis for proving eligibility for IDR. Ensuring that the physician providing the medical opinion in connection with the IDR application is familiar with the standard of incapacity under the Government Code is, thus, an important step in properly administering and defending IDR applications. Oftentimes, due to the risk of conflating the workers’ compensation and IDR standards for determining ability to return to work, it is advisable to obtain a separate IDR evaluation to address the question of substantial incapacity.
If there is a question as to the industrial nature of the disability being claimed, the issue of causation must be submitted to the Workers’ Compensation Appeals Board. However, the decision to grant or deny an IDR application is made by CalPERS for miscellaneous members and by the governing body or its delegate for local safety members. Appeals of the determination of eligibility for IDR are then heard by the Office of Administrative Hearings (OAH) or by the governing body with an OAH administrative law judge presiding.
CalPERS contracting agencies are provided with some leeway in determine the exact procedures to utilize in handling disputes over applications for IDR under the Government Code. Periodic review of dispute processes can allow contracting agencies to make sure that they are taking advantage of the nuances in procedure under the Government Code. Outside counsel can serve as a valuable resource in the review process and can assist in ensuring compliance with current government statutes and judicial rulings.
Hanna Brophy has experienced lawyers in CalPERS litigation. We offer our clients a number of services:
- We will review your dispute resolutions at no charge to ensure that your agency is in compliance with current changes in the Government Code and judicial determinations.
- If you are an agency that has yet to adopt dispute resolutions, we can prepare resolutions and provide templates for correspondence to CalPERS and to applicants.
- We can review applications submitted by safety officers for industrial disability retirement and make recommendations to the agency on whether the applications should be granted or denied.
- We can provide legal representation to the agency on disputed applications for industrial disability retirement and litigate before either the governing board or the ALJ with the Office of Administrative Hearings (OAH).