The California Fire Service July - August 2024

The California Fire Service 34

BAD ADVICE This advice has caused significant litigation and great costs to retirees (as fees in retirement cases are not contingent, and can run into more than $10,000 sometimes much more). If you wait to file; your delayed filing will be reviewed by someone other than that sweet receptionist, and when it gets to CalPERS legal (or the County attorney in CERL cases), you may face months of litigation. It is better to file for Service Pending Industrial Disability (or the CERL analogue). I prefer a filing for Industrial Disability Retirement (IDR), to “Service Pending IDR” as if you file only for IDR you may enlist the employer as ally because if you are not granted IDR, the employer must take you back to work. But whether to file for “Service Pending IDR” or merely to file for “IDR” deserves consultation with your CSFA lawyer. CAUSATION The 1937 System (CERL) adds virtually all of the presumptions of causation that exist in California Workers’ Compensation law. CalPERS has not enacted similar laws, so the burden of proof of industrial causation is yours. But the legal threshold for proof of industrial cause is the low “real and measurable” standard, which

law, it is unlawful for an employer to discriminate in any way against an employee who files, or notices an intention to file or to even testify for another employee with a workers’ compensation claim. Criminal and Civil penalties apply if discrimination is proven, and to discrimination, and often the record shows no other reason for discrimination other than a filing for workers’ comp. Others might counsel, “go ahead and file, and dare them to discriminate”. I think an ordered approach is best. If you have serious problems, you should file your claim. If you are number one on the Captain’s list, but have some modest problems, maybe talk to one of the CSFA recommended lawyers. Consulting a recommended attorney is available on all workers’ comp or disability retirement matters. We would rather counsel you before an emergency than try to extricate you after. We offer free phone consultations. DISABILITY RETIREMENT AND PSYCHE CLAIMS CAUSATION The “predominate cause” threshold for workers’ compensation psyche claims often it CAN be proven. Sometimes bosses admit

does NOT apply to disability retirement under either CalPERS or the 1937 Act. Retirement law requires you to prove only that your disability is substantially due to factors of the employment. Courts have interpreted “substantial relationship” to mean you must prove that the job cause was “real and measurable”. This low standard could mean that only a 20% job contribution would suffice-maybe less. Local Safety employers make the determination of disability. State Employees and CERL employees have their disability determined by the retirement system. TIME LIMITS IN DISABILITY RETIREMENT-are more stringent. You must file your application for retirement during or within four months of cessation of employment. If you do not file within these time limits, you may lose your right to file for retirement. A misleading exception causes many problems. The law allows filing even after the four-month time limit during continuous disability. Often, CalPERS receptionists advise callers “Go ahead and file for Service retirement. You can come back

later when your workers’ compensation claim is finalized.”

CSFA.NET