Industrial Disability Retirement & Maximum Medical Improvement

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This week I wanted to discuss a common problem that is inherent in the workers’ compensation and Industrial Disability Retirement process.

Often times, my clients (commonly CAL FIRE firefighters, my CDCR correctional officers, and my CHP officers) have an injury that is obvious to us that the client will not return to work.

My CAL FIRE firefighters in most situation have IDL for 52 weeks and then another 52 weeks of regular temporary disability. 

In most cases, my CDCR correctional officers have IDL for 52 weeks and then another 52 weeks of regular temporary disability.

My CHP clients have 4800.5 benefits and then 52 weeks of temporary disability.

In all cases, those benefits only continue if the person is temporarily totally disabled or on light duty that cannot be accommodated.  

It “makes sense” to apply for IDR while you are off work (while you have money coming in), because if you wait until your Maximum Medical improvement (sometimes called Permanent and Stationary or P&S), your benefits will stop and you will not have money coming in while your IDR is being approved.

On a side note, maximum medical improvement means that the doctor is saying that you are not going to get significantly better or worse and you a stable.  That is a big milestone in workers’ compensation.

If you apply for IDR before MMI, PERS may argue that we can’t approve your Industrial Disability Retirement.  They will say “you may be not able to perform your job now, but if you are not MMI, then that means you could improve.  Maybe after more improvement, you will be able to do the job.”

Most of my clients would love to return to work, however, it’s obvious by the injury that it isn’t going to happen, yet PERS may argue this.

So, the solution may be to wait until you are MMI.  The problem is that gap in benefits.  The solution for that is:

1. If you have enough leave credits, you can those to “get you by” until the IDR Application is approved.
2. If you have enough service time, you can apply for Service Retirement Pending IDR which goes you service retirement while you wait for your IDR to be approved.
3. If you have paid for an insurance program to cover wages in the event of an accident, then you could use that while you wait.

If non of these are an option, then you may have to plan for a gap in income.  

Some of my clients have successfully applied for IDR before MMI, but the risk is if the IDR Application gets denied, then you have to litigate the case and that requires hiring an attorney on retainer.  That can be costly.

There are a few strategies to apply for IDR before MMI and our office and attorneys we work with on IDR may have some solutions, but my advice is avoid the strategy of applying IDR before MMI if possible to avoid possible litigation with PERS.