Legal Question in Appeals and Writs in California

I am desperately hoping you can help me.

I need to find California case law where a Superior Court Judge ruled that a person who had been awarded social security disability would by default be eligible to receive CalPERS disability retirement? I hope I am making my request clear and that you understand what I think I need.

The theory I am trying to convince a Judge to consider is the social security disability eligibility requirements/criteria are difficult to meet. The CalPERS disability retirement criteria are different than the social security disability standard but if the higher standard is met and social security disability is awarded, then it would follow that the applicant should also qualify for CalPERS disability retirement benefits. (I read that the Railroad Employee Retirement PERB policy adopts this rule but I need case law to include in my Writ of Mandate – see below).

I also need to know if I am required to file the Writ of Mandate in a venue where CalPERS has an office. I live in Sonoma County, California, and there are no CalPERS offices in Sonoma County.

Also, does my 30-day deadline begin the day the CalPERS Board made its decision not to reconsider its decision approving the ALJ's Proposed Decision Denying my application for disability retirement (June 16, 2010) or does the clock start from the date the Board executed its Order/Decision (June 21, 2010)?

Brief Background:

The CalPERS Board had remanded my case back to the ALJ who initially denied my application but then chose to adopt the ALJ's second proposed decision denying my application for disability retirement. The reason for the remand was to allow the ALJ to review my social security hearing file since the federal ALJ awarded me full social security disability benefits one month subsequent to the ALJ issuing his proposed decision denying my CalPERS application for disability retirement. During the remand process, the ALJ requested that I brief him regarding res judicata, collateral estoppel, and comity case law. I tried my best to do that but apparently I failed since the ALJ chose to prepare a second proposed decision denying my application for disability retirement, which the CalPERS Board adopted at its hearing on June 16, 2010).

During this three-year process, I have lost my primary residence, two investment properties, my entire life savings, etc., etc. Any help would certainly be appreciated.

________

Definitions of “Disability”:

CalPERS’ legal division has made and continues to make the argument that the definition of “disability” is different for Social Security than how CalPERS defines that term.

Even though the definitions used by CalPERS and Social Security (SSA) may be slightly different, it is a well established fact that SSA's definition is a much more difficult standard to meet. By default, a lesser standard would be met if the higher standard was met. The issues are the same and it would only make sense that the Judges decisions would be consistent…if both ALJs had the same evidence available to it when analyzing and preparing a ruling.

As one example, the Railroad Retirement Board's definition of “disability” is the same as CalPERS definition of “disability.” Further, its Governing Principles for Railroad Retirement Disability Pensions address the issue of a CalPERS applicant who is applying for CalPERS disability retirement AND is received a fully favorable SSA disability benefit award.

The Railroad Retirement Board’s policy reads, in part:

Railroad employers and employees agree to fully cooperate with the Railroad Retirement Board's obligation to secure the establishment of standards for determining the physical and mental conditions which permanently disqualify employees for work in their regular occupation. As a sign of this cooperation the parties agree that the system and procedures used by the Railroad Retirement Board for rating occupational disability claims should be consistent with the following general principles:

Benefits must be awarded to qualified individuals who have a permanent physical and/or mental condition that renders them unable to perform one or more of the tasks of their regular occupation.

A qualified individual who has been medically disqualified by the railroad employer cannot fail to qualify for a disability benefit from the Railroad Retirement Board unless "no person would reasonably conclude" that the employee is disabled.

There cannot be instances where a qualified individual who meets the Social Security criteria for total and permanent disability fails to qualify for Railroad Retirement Disability Benefits.... (Emphasis Added.)

Asked on 7/13/10, 6:20 am

1 Answer from Attorneys

Steven Murray Steven W. Murray, APC
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Venue is not jurisdictional, so even if you file in Sonoma Co. the Petition will be timely filed. I am not sure about the timing, but generally the appealable document is the order, which is what the court will deem the decision of the Board.

The state/CalPers was not a party to the SSA hearing, so it is not bound by it nor is it determinative. You are correct that a lower standard must have necessarily been met, but you still have to prove your disability for CalPers. That should be simple since you have already done this once with SSA. You could have just done the same thing again.

You really ought to get counsel as CalPers is a formidable adversary and is used to litigating.

Good luck.

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7/16/10, 4:25 pm

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