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Transitions: Understanding Post-Injury and Pre-Retirement Benefits Can Make a Huge Difference to a First Responder

By Steve Scardino, Esq.

It is very hard to prepare for every contingency when you are injured at work.  If the injury requires time off, sworn police and fire employees generally receive 4850 benefits, which is a year of full pay that is not taxable.  This is a wonderful and hard-earned benefit for the people who protect us day in and day out.  However, things can get complicated when treatment does not result in a return to work after 365 days.  Knowing how Workers' Compensation as well as non-Workers' Compensation benefits fit together is the key to a less stressful transition back to work, or to retirement. 

Utilize Your Workers' Compensation Benefits

If you are unable to return to work after one year, do not despair.  If your employer has no modified work, and you continue to be disabled, Temporary Disability (TD) benefits are payable for up to one year in addition to 4850 pay.  That means that first responders are entitled to up to two years of pay for any industrial injury. (Sworn police and fire personnel previously received one year of 4850 benefits and up to two years of TD pay.)  

TD is payable at the lower, statutory rate of two-thirds of your average salary, up to a maximum weekly rate depending on your date of injury (it is currently up to $1,074.64 for injuries occurring on or after January 1, 2014).  Some Memorandum of Understanding (MOU) allow you to supplement TD with sick leave or other accrued time. And, if you have a disability policy, you can often use that to increase your weekly rate.

Decisions about return to work and retirement have to be made earlier in the process since TD is now limited to two years for all injured workers, including first responders.  If it becomes obvious that you are not going to be able to return to your police or fire job because of permanent limitations, your employer might retire you, and may voluntarily pay you Advanced Disability Pension pay until your Industrial Disability Retirement (IDR) starts.  However, you cannot count on your employer to do the right thing.  You must get a handle on the process, since some benefits are only payable if you secure them with timely applications. 

Can You Collect Workers' Compensation and Retirement?

Law enforcement officers and firefighters are contracted for service ("regular") retirement pensions as well as industrial disability (IDR) or service-connected disability retirement (SCDR) pensions if they are unable to continue working their duties as a result of a work-related injury. The interaction between Workers' Compensation benefits such as temporary disability,  Labor Code Section 4850 benefits, advanced disability pension payments (ADPP) and retirement pension benefits is complex. There are different laws and precedential court decisions applicable depending on the type of retirement system involved (CalPERS, county or charter city programs). If a member is in the position of receiving Workers' Compensation benefits concurrently or retroactively paid with retirement pension benefits, legal consultation is necessary to determine if there is any issue where the employer or Workers' Compensation insurer may claim a credit for overpayment of duplicate benefits. There are scenarios where a member may collect both, but there is an equally large concern for a claim of overpayment or retroactive credit if a disability retirement is involved. Many cases involve retroactive claims for credit by an employer when a disability retirement is granted after litigation or while waiting for medical evidence.

And some charter city programs (such as the City of Los Angeles) have a "recapture" provision legislated into their system where an automatic credit is granted against Worker's Compensation benefits paid if a disability pension is approved.  And with ADPP benefits, if a member receives these advanced pension payments while a disability retirement application is litigated but ultimately lost, there is the legal obligation to repay the advanced amount, which is usually a very large sum of money after years of litigation.

Advanced Disability Pension Payments

Also known as 4850.3 pay, Advanced Disability Pension (ADP) payments are payable by your employer at the rate of half pay, tax free up to the point when your first pension payments start.  However, your employer does not have to start these benefits unless you have  already applied for your IDR at least 60 days prior, and all other personal sick leave has been used, and 4850 and TD benefits have terminated. 

While employers are often quick to start ADP payments because they are fully reimbursable by the retirement system once pension starts, wise use of pre-pension benefits helps to get you to your destination. 

Develop a Strategy

Take an inventory of possible benefits.  Make a checklist of the basics:  Workers' Compensation, (includes 4850, TD), sick leave, other accrued and donated time, short-term and long-term disability, and in some cases, State Disability through the Employment Development Department. Obtain a quote from your pension system, so you know what you are facing financially, which will enable you to make an informed decision before you actually commit to retirement.  Also weigh out what option is best (between service-connected and industrial disability retirement).  Obviously, if you are young, with only a few years of service, but your injury or illness will not allow a return to work, generally your only retirement option is Industrial Disability Retirement through CalPERS or a County Retirement Act pension.  

Also, check with your Workers' Compensation attorney and your union to inventory what is available to sustain you while your pension application is pending, if that is where you are headed.  Ask your union about short- and long-term disability policies, and whether they are provided by your employer or the union.  Examples of such policies include AFLAC, CLEA, PORAC, PORF (relief fund).  State Disability Insurance (SDI) is another form of short-term disability that should be secured by applying within the first year of leave, even if other benefits are paid (simply disclose what other benefits are being paid so that you can come back to SDI when those benefits terminate).

Be Patient and Use Your Benefits Wisely

In the case of some county pension plans, it can take many months to hear from the retirement board.  Even CalPERS can take a few months to issue the first industrial disability pension check.  While the claim is pending, you should fill in the gaps with a combination of sick time, accrued leave, and or short- and long-term disability benefits, all of which generally have to be exhausted before advanced disability pension payments are made by your employer.

Further, accrued leave pay can sometimes be used to extend group medical coverage beyond the point where it would normally terminate.  Tell your Workers' Compensation attorney, and your union and employer payroll department how you want your accrued leave pay to be used.     Obviously, if your MOU allows you to retire with a payout of all or some of your accrued leave pay, that may influence your decision. 

Being proactive is key, and getting help from a Workers' Compensation attorney skilled at representing people in safety is critical. 

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