Sec. 120.308. - Disability.

(a) A member shall be disabled under the terms of the Plan if the member has suffered an illness, injury or disease which renders the member permanently and totally incapacitated, physically or mentally, from regular and continuous duty as a corrections. A disability benefit cannot be based on a condition which pre-existed membership in the Plan unless the nature of the injury or illness giving rise to the disability would reasonably be expected to give rise to a disability in a person without the pre-existing condition. (b) A member shall be eligible for a service-incurred disability retirement from the entry date into the Plan. A service-incurred disability retirement shall mean that the disability arose as a result of an act occurring, or presumed by law to have occurred, in the performance of service with the City. (c) A member shall be eligible for a nonservice incurred disability retirement upon the completion of five years of credited service. A nonservice incurred disability shall be an illness, injury, or disease, which did not occur as a result of an act in the performance of service with the City. (d) The service-incurred disability benefit shall be paid on a bi-weekly basis in an amount equal to 50 percent of the average salary earned by the member in the last three years immediately preceding disability retirement, including any period of leave of absence without pay. (e) The nonservice-incurred disability benefit for members with five years of credited service shall be paid on a bi-weekly basis in an amount equal to 25 percent of the average salary earned by the member in the last three years immediately preceding disability retirement, including any period of leave of absence without pay. For each additional year of credited service in excess of five, the benefit shall be increased at the rate of 2.5 percent to a maximum of 50 percent. (f) Disability benefits shall be paid bi-weekly. No benefit shall be paid until the Board of Trustees has actually considered and approved the member's entitlement to disability. (g) Disability retirement income shall continue until the death of the member, or recovery from disability or upon the death of a member, the benefit would be paid at 75 percent to the eligible surviving spouse as defined in Section 120.307 (a). (h) The Board of Trustees shall have the continuing right to require disabled members to submit to a medical examination to determine that the member remains disabled. In order for a member to be deemed recovered, the Board-approved physician must recommend to the Board of Trustees that the member has sufficiently recovered to again engage in gainful employment and that the City has certified that it has a position within its work force available for the member consistent with the member's medical condition. The decision by the Board to examine some but not all disability retirees shall not be deemed an abuse of the Board's discretion. (i) Upon finding that a member is no longer disabled, the member shall return to work at the same rank and position previously occupied and shall be placed into the appropriate pay rate based on cost-of-living (COLA) allowances and merit increases which the member would have received but for the disability, as determined by the City. The member shall again become an active member of the Plan if reemployment is accepted. There shall be no creditable service for any period of time in which the member was receiving disability benefits from the System. If the member declines reemployment with the City, the member shall be deemed to have terminated employment on the date that the disability commenced. In such event, the member may receive a return of contributions unless, prior to that date, the member has received disability benefits equal to or greater than the amount of the accumulated contributions. (j) No member shall be eligible to receive disability benefits from the retirement plan during any period of time that the member is receiving a salary from the City. This Section shall not apply to the receipt of workers' compensation benefits. (k) Application for disability retirement shall be made on a form prescribed by the Board of Trustees. The member shall execute such medical releases as are necessary to permit the Board of Trustees to review the medical records needed to determine the question of disability and to discuss said records at a public meeting. Upon receipt of an application for disability, the Board shall appoint not less than one or more than three licensed physicians. The applicant for disability shall be required to submit to examination by the Board-designated physician(s). The Board-designated physician(s) shall report its findings to the Pension Advisory Committee and Board of Trustees, which shall include a determination, to the extent reasonably possible, of the origin of the disability, whether the disability is permanent, and whether the disability is total. In making that determination, the Board-designated physician(s) shall be bound by the definition of disability set forth in this Plan. (l) Upon receipt of the report of the Board-designated physician(s), the Pension Advisory Committee shall schedule a public hearing at which time the Committee shall review all reports of the Board-designated physician(s), together with any such documentary evidence as the applicant may wish to submit. The Committee shall make a preliminary determination as to whether the member is permanently and totally disabled based upon the written documentation presented. If the Committee does not recommend that the Board of Trustees grant the application based on the written documentation, it shall inform the member in writing of the reasons for the denial of the application. The member may, within 30 days of receipt of the Committee's preliminary denial, request a full evidentiary hearing before the Committee. Said hearing will be conducted consistent with the principles of due process and the rules of evidence generally applicable to administrative proceedings shall apply. The Committee shall have the power to issue subpoenas compelling the attendance of witnesses. At said hearing the applicant may present such oral and written evidence as the applicant deems necessary to establish its burden of proof. The applicant and the Committee shall have the right to examine and cross-examine all witnesses. The recommended decision of the Committee shall be based solely upon the evidence presented and the law applicable to this System. Following the conclusion of the hearing, the Committee shall render an opinion in writing setting forth the reasons for recommending the grant or denial of the benefit. The Committee's recommendation shall be reported to the Board, which makes the final determination. In the event that the disability benefit is denied, the applicant may make a formal appeal to the Board. (m) The Board of Trustees may prescribe rules of procedure to implement the provisions of this System relating to the conduct of disability hearings. (n) No member shall be granted a disability pension upon a determination by the Board that the disability resulted from: (1) Excessive and habitual use of drugs, intoxicants or narcotics; (2) Injury or disease sustained while willfully and illegally participating in fights, riots, civil insurrections or while committing a crime; (3) Injury or disease arising from service in the armed forces which entitle the member to disability benefits from the former employer; (4) Self-inflicted wounds or conditions; (5) Pre-existing physical conditions determined from the initial physical examination at time of entry into the Plan. (o) No disability benefit payable from this Plan shall be reduced by any outside income from any gainful employment or occupation engaged in after retirement. (Ord. 2005-432-E, § 2)