PEACE OFFICER & FIREFIGHTER DISABILITY RETIREMENT
Virtually all California peace officers and firefighters are entitled to enhanced disability retirement benefits in the event of permanent incapacity for duty resulting from an on-the-job injury. The disability retirement benefits to which an employee is entitled depend on the system to which he/she belongs; his/her job classification; the employer’s agreement with the retirement system; the collective bargaining agreement; and the circumstances from which entitlement arises. The applicable procedure varies, according to the particular system of which he/she is a member. There are significant differences. We have successfully represented peace officers and firefighters before the Alameda County Employees’ Association (ACERA); Contra Costa County Retirement Association (CCCRA); CalPERS; San Francisco Employees’ Retirement System (SFERS); and San Mateo County Employees’ Retirement Association (SamCERA).
Because of the complexity of the retirement laws and procedures, we encourage peace officers and firefighters with career-threatening injuries to consult an attorney before filing for an industrial retirement.
Who may apply?
CHP officers, deputy sheriffs, state and local peace officers, and firefighters incapacitated for the performance of duty as the result of an industrial disability may apply for an Industrial Disability Retirement (Service-Connected Disability Retirement, for county members), regardless of age or length of service.
Generally, to receive an industrial disability retirement, one must apply PRIOR to termination of service, withdrawal of contributions, or ordinary service retirement. There are some exceptions.
When must an application be made?
Application for retirement may be made by the member; his/her employer; or anyone acting on his/her behalf. An application for retirement must be made:
1. While in service or absent on military leave;
2. Within four months of discontinuance of service, or while on an approved leave of absence;
3. While the member is physically or mentally incapacitated to perform duties from the date of discontinuation of service to the time of application.
What is the amount of the disability retirement allowance?
The Industrial Disability Retirement Allowance is generally 50% of the member’s final compensation, or the amount of the service retirement allowance, if that is greater for members over age 50.
What is disability?
To qualify for an Industrial Disability Retirement, a public safety member must demonstrate an “incapacity for performance of duty.” The courts have defined “incapacity” as a substantial inability to perform the duties of one’s position. However, a fear of future incapacity has been held not to be a present and permanent incapacity.
What effect does permanent light duty have on a retirement application?
A few California public safety and fire departments offer their employees “permanent light duty” in lieu of disability retirement. If the employer makes such an offer and the employee refuses the position, a disability retirement will normally be denied if:
1. There is a uniform program of light duty available to all similarly-disabled employees; and
2. The light duty is in the same classification for which one is otherwise disabled, and carries equal pay, equal benefits, and equal promotional opportunity.
What is the procedure for applying for disability retirement?
The procedure for application for disability retirement depends on whether the employee works for the state; a local governmental entity; or a county, which is governed by the county retirement system pursuant to the 1937 County Employees’ Retirement Law.
If the safety member is a state employee, the application is submitted directly to CalPERS. Its Benefit Applications Services Division gathers the medical information from the employer and makes a determination about the existence of incapacity.
For local safety members of CalPERS, the employer or the employee may make application for disability retirement to CalPERS. The local safety employer makes the initial determination of incapacity. If the local safety employer denies the disability retirement, the member is entitled to a hearing conducted by a state administrative law judge.
For safety members under the County Employees’ Retirement System, application for disability retirement (Service-Connected Disability Retirement) is made directly to the County Employees’ Retirement System. Each system has slightly different procedures and administrative rules, but each system is required by law to provide the applicant with an administrative hearing on disputed issues. Issues such as substantial incapacity for duty, and whether a disability is service-connected, are determined by the Board of the Retirement System only. The Workers’ Compensation Appeals Board has no jurisdiction over issues arising under the County Employees’ Retirement Law.