ATTACHMENT C

RESPONDENT'S ARGUMENT

To: Cheree Swendensky Date: Jan 29,2019Assistant to the Board ^ CaiPERS ID#CalPERS Executive Office rEB

From: Alan Soares - : • ••

Retired Maintenance Mechanic —

California Department of Corrections Folsom Prison

Subject: Respondent ArgumentMr. Alan Soares appeal to CalPERS to accept his application for IndustrialDisability Retirement

I am appealing to the CalPERS Board, that you may grant me my Industrial Disability Retirementunder Government code 21151 1 subsection A, Government code 20160 and following the intent ofSection 473 of the Code of Civil Procedure.

1 have found myself in this situation, needing to appeal to the CalPERS Board due to a correctableerror. I am eligible for Industrial Disability Retirement because I worked for the Department ofCorrection, Folsom State Prison as a Maintenance Mechanic under safety retirement for 24 yearsfrom 6-20-89 through 5-18-2013. 1 was injured on the job and unable to perform my usual andcustomary work duties and no longer able to protect myself or coworkers from inmate assault. Ibegan seeing State Compensation Insurance Fund doctors. In order for me to maintain and continuemy livelihood, 1 was forced to service retire. A CalPERS representative advised me that 1 may beeligible for Industrial Disability Retirement. 1 changed my application to Service Retirementpending Industrial Disability Retirement. My treating physicians would not complete thePhysicians report on Disability until 1 was permanent and stationary. Therefore 1 was unable toprovide the form to CalPERS. 1 was deemed permanent and stationary and permanently disabledNovember of 2017. 1 then reapplied for the Industrial Disability Retirement and was denied due tothe length of time it took me to obtain the required Physicians report.

1 followed all advice given to me by CalPERS representatives. They continually told me to returnwhen I had all the required documents. When my doctor agreed to complete the Physicians reporton Disability, 1 was deemed by CalPERS to be years late in my application, therefore I was denied.Not one time was 1 counseled that 1 didn't need to be permanent and stationary to be eligible forIndustrial Disability Retirement. CalPERS treated me neglectfully by not offering me theirassistance to obtain the necessary Physicians report on disability. Additionally they did not followthe intent of Government code 20160 that every member should be granted the maximum benefitfrom the retirement system.

Ms. Cobbler was the program representative that determined if 1 was eligible for the IndustrialDisability retirement. Ms. Cobbler testified that other members have faced the same challenges 1had with trying to get the Physicians report of Disability completed and that CalPERS helps themnow obtain the form by directly contacting the physicians. According to Ms. Cobbler's testimony,CalPERS recognizes they have an obligation to help these members. 1 was not offered thisassistance nor was it given to me.

I believe that Code of Civil Procedure section 473 subsections B applies here. 1 should be affordedrelief because the excusable neglect was my failure to provide the Physicians report of Disabilitywithin the 30-day deadline. My treating physician originally declined to complete the form because1 was not permanent and stationary at that time and was unable to comply with the deadline. If 1

ATTACHMENT C

had received the above-mentioned assistance from CaiPERS, as did other members, I would have

been approved. Due to CalPERS inability to provide assistance to me my neglect to provide theform should be excusable.

Government code 20160 affords me the right to have these errors corrected. I will not receive anyadditional monies from CalPERS. I will receive tax relief. The approval of my IndustrialDisability Retirement application and correction from Service Retirement to Industrial DisabilityRetirement would give me the maximum benefit from the retirement system of which I am entitledby law.

If after review and approval of this appeal, two issues need to be examined:1) Review documents and more clearly explain that the member may not be eligible to reapply

after a certain length of time. The document from Scott Elling, Retirement Program Specialist,Disability Retirement Section, CalPERS dated August 8, 2013 notified me that my industrialdisability retirement application was canceled and that any future requests would require a newapplication. This led me to believe the only issue was lack of documentation, and when I had it, Iwas eligible to reapply. This was not true. This type of simple notification leaves interpretationup to the member, thus creating confusion.

2) CalPERS may need to look at retraining staff in the area of industrial disability retirement.Not one time was I ever counseled that 1 didn't need to be permanent and stationary in order to beeligible for disability retirement. Additionally, 1 was never advised by anyone at CalPERS that theycould help me obtain the documents needed. This was neglectful and harmed me by allowing me tomove through the system haphazardly, causing confusion and has produced an invalid applicationthat has been denied.

I do agree with Administrative Law Judge Karl Engeman, in his evaluation of my circumstances.His understanding of my situation led him to state "Respondent Soares should be forgiven hisomission and have his application processed." Moreover, he made note that Ms. Cobbler'stestimony made it clear that while other members have been afforded the opportunity to haveCalPERS obtain the crucial Physicians Report of Disability, I was not given that opportunity. JudgeEngeman determined that my neglect in submitting the Physicians Report on Disability is excusable.

I question the spirit of the laws (Government code 211511 subsections A, Government code 20160and Section 473 of the Code of Civil Procedure). These Government codes that direct CalPERS tohelp me obtain an industrial disability retirement seem to have been misinterpreted and precluded mefrom benefits I am entitled to. I cannot imagine that they would be created to hinder my ability toreceive entitled benefits.

None of the errors made by myself or CalPERS were intentional. This is a matter of amisunderstanding, a correctible error that needs to be corrected. By the use of Government code20160 by the CalPERS Board, you are allowed the ability to correct this error. 1 am respectfullyrequesting you do so.

Thank you for your consideration in this matter.

Alan Soares

Retired Maintenance Mechanic

California Department of Corrections Folsom Prison