(A) For purposes of divisions (C)(2), (C)(3),
(C)(4), and (C)(5) of former section
742.37 of the Revised Code and
section
742.38 of the Revised Code and
this rule, the following terms shall have the meanings set forth herein:
(1) "Board," shall mean the board of trustees
of the Ohio police and fire pension fund ("OP&F").
(2) "Applicant" shall mean a member of
OP&F who has filed any type of application for disability benefits or any
person who has filed such application on behalf of an incapacitated member in
accordance with division (B) of section
742.38 of the Revised Code and
rules
rule
742-3-12
and 742-3-13 of the Administrative
Code and who does not have benefits vested under the deferred retirement option
plan under section
742.444 of the Revised
Code.
(3) "Disability benefit
recipient" shall have the meaning described in division (A) of section
742.40 of the Revised
Code.
(4) "On-duty illness or
injury" means an illness or injury that occurred during or resulted from the
performance of official duties as a police officer or firefighter.
(5) "Off-duty illness or injury" means an
illness or injury that did not occur during or result from the performance of
official duties as a police officer or firefighter. Unless the illness or
injury meets the presumption criteria outlined in section
742.38 of the Revised Code or
competent and credible evidence is submitted to OP&F, a disability
condition is presumed to be the result of an off-duty illness or
injury.
(6) "Permanent disability"
shall have the same meaning set forth in division (D) of section
742.38 of Revised
Code.
(7) "Total disability" shall
have the meaning set forth in division (D) of section
742.38 of the Revised
Code.
(8) "Partial disability"
shall mean a condition of disability with respect to which the board finds the
applicant is prevented from performing the member's official police or fire
duties and member's earnings capacity is impaired.
(9) "Guides" shall mean the American medical
association's "Guides to the Evaluation of Permanent Impairment, fifth and
sixth editions."
(10) "Occupational
characteristics" shall mean the U.S. department of labor's occupational
characteristics for police officer (government service) and fire fighter (any
industry) positions as the standards for determining the presence or absence of
disability.
(11) "Medical Advisor,"
as referred to in this rule, shall mean the expert physician appointed by
OP&F's board of trustees who advises the board on appeals of decisions
relating to disability applications.
(12) "Vocational Expert," as referred to in
this rule, shall mean the expert in vocational evaluations appointed by
OP&F's board of trustees who advises the board on appeals of decisions
relating to disability applications.
(13) "Disability evaluation panel (DEP)"
shall mean the medical consultants retained by the board to make written
recommendations to the board's disability committee on pending disability
applications.
(14) "Disability
committee medical advisor," as referred to in this rule, shall mean the expert
physician appointed by the board of trustees to advise the disability committee
during its deliberations of initial disability applications and post-disability
grant reconsiderations, who shall be a different physician than the medical
advisor.
(15) "Disability committee
vocational expert," as referred to in this rule, shall mean the expert in
vocational evaluations appointed by the board of trustees to advise the
disability committee during its deliberations of initial disability
applications and post-disability grant reconsiderations, who shall be a
different evaluator than the vocational expert.
(16) "Forms" shall mean the forms created,
approved, and/or provided by OP&F for the administration of benefits found
on the OP&F website at
http://www.op-f.org.
(B) Impairment and disability evaluation
criteria:
(1) A competent and disinterested
physician and vocational evaluator may be assigned to conduct independent
medical examinations for purposes of determining a member's disability, as
provided by law, medical impairment and eligibility for disability
benefits.
(2) In evaluating a
member's disability, as provided by law, medical impairment and eligibility for
disability benefits, the DEP, the disability committee and the board will use
the official duties provided by the employer. In the event such information is
not provided by the employer or does not clearly define the applicable job
duties, the DEP, disability committee and the board shall use the criteria
contained in the "guides", the occupational characteristics adopted by the
board, and the criteria set forth in division (D) of section
742.38 of the Revised
Code.
(3) In evaluating a member's
eligibility for disability benefits, the physicians, vocational evaluators, the
DEP, the disability committee and the board shall consider the member's
potential for retraining and reemployment and the eligibility criteria set
forth in division (D) of section
742.38 of the Revised Code so
that the person's ability to be retrained and reemployed shall include any
positions, not just police or fire positions.
(4) The consideration of a member's
application shall be limited to the disabling condition(s) listed in the
application if supporting medical documentation is provided to OP&F or
disclosed by the examination of the physician(s) selected by OP&F. The
disability committee and the board shall consider and base its findings and
recommendations on all competent evidence made available to it, including
medical testimony, opinions, statements, and medical reports submitted by the
member's employer under section
742.38 of the Revised Code and
rule
742-1-02 of the Administrative
Code.
(5) The DEP shall submit to
the disability committee a written recommendation on each application evaluated
followed by a report incorporating a summary of findings, along with their
medical opinion as to whether or not the disabling condition results from an
on-duty illness or injury and whether or not the condition is eligible for
waiver.
(6) In reviewing
applications for disability benefits, the disability committee shall rely upon
the recommendations of the disability committee medical advisor and the
disability committee vocational expert, who have given due consideration of
medical and other evidence presented to OP&F.
(C) Initial application.
(1) Applications for disability benefits
shall be made on a form approved by OP&F and must be properly completed in
order to be processed. The member shall provide necessary substantiating
documentation, including, but not limited to, pertinent hospital records,
statements from attending physicians, departmental injury reports, the results
of any special diagnostic tests, and notice of allowed workers' compensation
claims. The documentation submitted by the member shall be objective, relevant,
and recent (i.e., dated within two years from the date of application for
disability), as determined by OP&F staff in consultation with the
disability committee medical advisor. Any documentation to the contrary or that
is duplicative may not be considered as part of the member's application.
Documentation that is not considered shall be returned to the member with a
written notice listing the documentation being returned and the reason for the
return.
(2) OP&F shall notify
the member's employer that an application has been filed and will send a
courtesy copy of such notice to the member within fourteen days after receiving
an application for disability benefits from a member or a person acting on
behalf of a member, as required by the terms of division (B) of section
742.38 of the Revised Code. The
notice shall state only the position or rank, as required by the terms of
division (B) of section
742.38 of the Revised
Code.
(3) For those notices sent
under paragraph (C)(2) of this rule, the member's employer shall forward to
OP&F a statement certifying the job description for the position or rank
and any other information required by the board to process the application and
such report or statement shall be filed with the board not later than
twenty-eight days after the employer's receipt of the notice referred to in
paragraph (C)(2) of this rule or filing an application on behalf of a member,
whichever is the first to occur.
(4) The member's employer shall forward the
physician's report of the member's physical examination taken on entry into the
police or fire department, as more fully provided in division (A)(1) of section
742.38 of the Revised Code. If
the employer fails to forward such report to OP&F on or before the date
that is sixty days after the member becomes an OP&F member, division (A)(2)
of section
742.38 of the Revised Code
requires OP&F to assess against the employer a penalty determined under
section
742.353 of the Revised Code and
rule
742-8-08 of the Administrative
Code. Even though a member may not have a disabling condition that is presumed,
by law, to have been incurred in the member's performance of his/her official
duties, that does not foreclose the member from being awarded a
service-incurred disability grant.
(5) Once the application is complete, the
member covered by the pending disability benefit application may be scheduled
for an independent medical examination(s) and vocational evaluation, unless it
is medically inadvisable to do so.
(a) Payment
of any fees connected with the acquisition of records or the preparation of
reports of the attending physicians shall be the responsibility of the
member.
(b) Payment of any fees
connected with the preparation of the report of the independent medical
examination(s) and vocational evaluation shall be the responsibility of
OP&F.
(6) The DEP
shall review the application and all medical reports and records, and then make
a written recommendation to the disability committee based upon the criteria
set forth in paragraph (B) of this rule. The board, based on the written
recommendation of the disability committee, will then consider the application
and make an initial determination of disability. The board may:
(a) Grant a disability benefit;
(b) Deny disability benefits; or
(c) Postpone determination, pending an
additional examination, or the submission of additional fact.
The member covered by a pending disability application may
withdraw the application through a written authorization filed with OP&F at
any time prior to the board's award of the initial determination of disability.
To the extent that a pending disability application is withdrawn by a member,
the withdrawn application shall not be presented to the disability committee or
the board, depending on when it is received by OP&F.
(7) Copies of the reports of the
independent medical examiners and vocational evaluators will be sent to the
member and the member's agent upon their request, unless the release of such
reports is otherwise prohibited by law. The DEP recommendations will not,
however, be released until the board has made an initial determination of
disability. For purposes of the initial determination of disability, OP&F
will not consider any documents from a member or a member's agent that seek to
rebut or comment on the reports of the independent medical examiners and
vocational evaluators.
(8) Any
disability benefit award determined by the board shall be effective as of the
date that the board made its initial determination of disability on such
pending disability application.
(9)
The member covered by the pending disability application shall be notified of
the board's initial determination of disability within thirty days after the
board's final action and such notice shall be sent by certified mail, return
receipt requested. The member covered by the pending disability application
shall be advised of his or her right to:
(a)
Accept the benefit grant;
(b) Waive
the benefits and continue working; or
(c) Appeal the initial determination of the
board.
(D)
Acceptance or waiver of benefits.
Not later than ninety days after receipt of the notice of the
board provided for in paragraph (C), (E), or (F) of this rule, the disability
benefit recipient shall accept or waive the board's determination of disability
on the disability benefit election form provided by OP&F.
For purposes of making the determination whether the disability
applicant has accepted or waived the board's determination of disability,
OP&F may conclusively rely upon its books and records.
(1) If no such election is filed with
OP&F within the ninety-day time period provided in paragraph (D) of this
rule, the award shall be rescinded.
(2) Subject to the requirement set forth in
paragraph (D) of this rule, if a member accepts the award and then fails to
establish an effective date of retirement by terminating police or fire
employment within ninety days of receipt of notice of the board's determination
of disability, as provided under paragraph (C)(9) or (E)(7) of this rule, the
disability benefit shall be rescinded.
(3) A member whose benefits are rescinded
pursuant to paragraph (D)(1) or (D)(2) of this rule shall not be foreclosed
from later filing another disability benefit application. Any subsequent
applications shall be treated as a new application for disability benefits,
except to the extent that such member does not meet the eligibility
requirements set forth in division (D) of section
742.38 of the Revised
Code.
(E) Appeal of
initial determination.
(1) Upon a member's
appeal of the board's initial determination of disability, the board shall be
advised by its medical advisor and vocational expert. The board shall not be
under any obligation to adopt the recommendation of its medical advisor or
vocational expert if there is some evidence to support a contrary
finding.
(2) A member who wishes to
appeal the board's initial determination of disability shall file the notice of
disability appeal form provided by OP&F within ninety days of receipt of
the board's initial determination of disability referred to in paragraph (C)(6)
of this rule. The notice of appeal must contain the member's name, social
security number and a brief description of the decision upon which the appeal
is based.
(3) Within
sixty
thirty
days of filing of the notice of appeal, the member shall file any new evidence
not previously considered by the board on the initial disability application.
Such evidence shall be objective, relevant, and recent (i.e., dated within two
years from the date of application for disability), as determined by OP&F
staff in consultation with the disability committee medical advisor. Any
documentation to the contrary or that is duplicative may not be considered as
part of the member's appeal. Documentation that is not considered shall be
returned to the member with a written notice listing the documentation being
returned and the reason for the return.
(4) Failure to submit supporting materials or
to request an extension of time within which to do so will be sufficient cause
for the appeal to be dismissed. Upon application before the expiration of the
original
sixty
thirty day period referred to in this paragraph, the
appellant may, for good cause shown, be granted an extension of
sixty
thirty
days within which to file supporting materials. The appellant may be granted an
additional extension based on a recommendation from the disability committee
medical advisor that there is solid evidence of a medical reason to grant the
extension for a period of time recommended by the disability committee medical
advisor. In no event shall the hearing be postponed more than three times and
in no event shall the extensions, in the aggregate, exceed
one year
six
months. A request for a postponement received by OP&F within ten days of
the date of the hearing will only be granted in exceptional circumstances, as
determined by OP&F's executive director in his or her sole
discretion.
(5) Depending on
the basis for the appeal and the new evidence submitted by the member, the
member may be requested to undergo a new medical examination and/or vocational
evaluation by an independent examining physician and/or vocational evaluator.
OP&F may also provide the new evidence to the original independent
examining physician and/or vocational evaluator and request that they review
the new evidence and provide an addendum to their original reports. The payment
of any fees connected with the preparation of the report of the independent
medical examination(s) and vocational evaluation shall be the responsibility of
OP&F. The new evidence submitted by the member and any additional medical
and/or vocational reports, including addendum reports, shall be forwarded to
the board's medical advisor and vocational expert for review and consideration.
The medical advisor and vocational expert will then provide recommendations to
the board regarding the member's disability application.
(6) Upon receipt of the recommendations from
the medical advisor and vocational expert, the board shall schedule a hearing
on the appeal and shall give the appellant reasonable notice of the date, time
and place thereof in writing. Such hearings shall be scheduled within sixty
days of the receipt of the reports of the medical advisor and vocational
expert. Any hearing may be postponed or continued by the board, either upon
application of the appellant or on its own motion. The appellant shall be given
the opportunity to be present, with counsel or other representation if he or
she chooses, at the hearing. A recording of the hearing will be made to provide
the board and the medical advisor with a record for further review. Such
recording of the hearing shall be available to the disability applicant and to
those individuals who are authorized by the disability applicant to receive
such information on the authorization to release medical records form provided
by OP&F.
(7) Following the
hearing on appeal, the board may choose to:
(a) Affirm the original determination of
disability;
(b) Modify the original
determination of disability;
(c)
Deny the disability application; or
(d) Postpone a decision pending additional
examinations or documentation.
The board's decision on appeal shall be the final determination
of the initial disability application, subject to the foregoing time
limitations on extensions that can be granted.
(8) The applicant shall be advised of the
board's action within thirty days after the board's final determination of
disability and such notice shall be sent by certified mail, return receipt
requested. The member covered by the disability appeal shall be advised of the
member's right to:
(a) Accept the benefit
granted;
(b) Waive the benefit and
continue working; or
(c) File a
mandamus action.
(F) Post-disability grant reconsideration.
(1) A member who is receiving a less than
maximum partial disability and who believes that deterioration of the disabling
physical or mental condition awarded by the board has increased the amount of
disability, may apply for a reconsideration. Such application shall be on the
disability reconsideration application form prepared by OP&F, which shall
be dealt with on not less favorable terms than the process used by the
disability committee for recommendation to the board on initial determinations
of disability. The member shall supply substantiating documentation including:
(a) Recent medical reports and physician's
statements;
(b) A wage statement
including taxable earnings for the last five years of retirement, primary
employers and occupations, and rehabilitation and training programs
pursued.
(2) The
disability committee shall review such evidence and shall make a written
recommendation to the board. The board shall, based on the written
recommendation of the disability committee, review the evidence submitted, and
may decide to:
(a) Deny the application for
reconsideration;
(b) Approve the
application and modify the disability benefit effective the first of the month
following the decision; or,
(c)
Postpone a determination of the application pending further physical
examination, or further documentation.
The board's decision shall be the final determination of an
application for reconsideration.
(3) The member shall be advised of the
board's final determination within thirty days after the board's final action
and such notice shall be sent by certified mail, return receipt requested. The
letter shall include notice of the member's right to request a new
reconsideration, but the board will consider only one application for
reconsideration from a member during any twelve-month period.
(G) Notwithstanding anything
herein to the contrary, once a member has deposited, negotiated, or cashed a
disability benefit check from OP&F, or failed to withdraw his/her
disability benefits application, as outlined in rule
742-3-17 of the Administrative
Code, that member may not apply for any new, increased, or additional benefit
for the disabling condition(s) described in such application, except for a
member who is granted an off-duty disability less than the maximum amount
permitted under division (D)(4) of section
742.38 or former division (C)(5)
of section
742.37 of the Revised Code, or a
member who had fewer than twenty-five years of service credit and was granted a
partial disability in an amount less than the maximum permitted by division
(D)(2) of section
742.38 or former division (C)(3)
of section
742.37 of the Revised Code, may
apply for an increase in payments to the maximum amount provided by those
sections upon evidence of deteriorating earning capacity. Any subsequent
request by that member shall be treated as a new application under this rule.
In addition, a member may elect to receive interim payments without waiving the
member's right to appeal a disability award, as provided for in paragraph (E)
of this rule.
(H) Additional
medical treatment:
(1) As a condition to
granting an applicant disability benefits or continuing disability benefits
under an existing award, as provided in division (B) of section
742.40 of the Revised Code, the
member shall agree in writing to obtain any medical treatment recommended by
the board's physician(s) and submit the required medical reports over the
course of the treatment period.
(2)
Such additional medical treatment shall be of common medical acceptance and
readily available, and may include, but is not limited to, medicine, alcohol
and/or drug rehabilitation, or mechanical devices.
(I) The board may suspend the awarded
disability benefits and any health care stipend upon ninety days prior written
notice to the member if the member fails to:
(1) Obtain the recommended treatment required
under division (B) of section
742.40 of the Revised Code, as
referenced in paragraph (H) of this rule;
(2) File the required medical report;
or
(3) Comply with the required
treatment regimen.
If the disability benefit recipient fails to comply within the
aforementioned ninety day notice period, the suspension of disability benefits
and any health care stipend shall be effective on the first day of the month
immediately following the expiration of such notice period until the treatment
is obtained, the required report is received by the board, or the board's
physician certifies that the treatment is no longer helpful or
advisable.
In the event the disability benefit recipient complies within
the aforementioned ninety day notice period or the board's physician certified
that the treatment is no longer helpful or advisable, OP&F will not suspend
the disability benefit recipient's disability benefits and any health care
stipend.
(J) If,
after the aforementioned ninety day notice period, referred to in paragraph (I)
of the rule, the disability benefit recipient submits to the requested
treatment, submits the required reports, complies with the required treatment
regimen, or the board's physician certifies that the treatment is no longer
helpful or advisable, OP&F will reinstate the disability benefits and any
health care stipend of such disability benefit recipient, effective as of the
first day of the month immediately following the month in which the past due
statement(s) were received in proper form by OP&F.
(K) If a disability benefit recipient fails
to submit to the medical examination required by division (C)(2) of section
742.40 of the Revised Code and
such failure continues for one year, whether documented by OP&F's books or
records or as presumed as provided in rule
742-3-10 of the Administrative
Code, then the disability benefit recipient's disability benefits and any
health care stipend shall be forfeited, as required by the terms of division
(C)(2) of section
742.40 of the Revised Code. The
forfeiture shall be effective as of the date of the original suspension, as
referenced in a writing provided to the disability benefit recipient from
OP&F.
(L) For purposes of
determining whether the recipient has refused to comply with the provisions of
this division (C)(2) of section
742.40 of the Revised Code and
this rule, OP&F may conclusively rely upon its books and records.
(M) Except as expressly provided in this rule
or section
742.40 of the Revised Code, all
notices to the disability benefit recipient or applicant shall be either
delivered personally, sent by express delivery service, certified mail, or
first class U.S. mail, postage prepaid, and addressed to the disability benefit
recipient at the most recent address set forth in OP&F's records. All
notices to OP&F shall be addressed at its principal place of business.
Except as otherwise specifically provided for in this rule, notices will be
deemed given as of the earlier of:
(1) The
date of actual receipt;
(2) The
next business day when notice is sent via express mail or personal delivery;
or
(3) Three days after mailing in
the case of first class or certified U.S. mail.
(N) If an initial application for disability,
an appeal, or a reconsideration application has been filed pursuant to
paragraph (C), (E), or (F) of this rule and the supporting documentation has
not been filed with OP&F or the applicant has not taken any action to
prosecute his/her claims within six months of the filing with OP&F, the
application, appeal, or application for reconsideration may be dismissed, as
the case may be, for failure to prosecute the claim.
(O) In determining whether a member had a
physical examination before entry into the department, as required in division
(D)(3) of section
742.38 of the Revised Code,
OP&F shall use the following criteria:
(1)
For disability benefit applicants who became "members" of OP&F prior to
September 16, 1998, OP&F will consider the physical examination requirement
set forth in division (D)(3) of section
742.38 of the Revised Code to
have been met if OP&F receives the following:
(a) A writing signed by a licensed physician
that documents the examination of the member prior to his/her entry into the
police or fire department, as the case may be, and the writing is dated prior
to the person becoming a "member" of OP&F, as such term is defined in
division (E) of section
742.01 of the Revised Code or
the person's entry into the department where the person is employed at the time
of the filing of the disability application, provided such date is not more
than nine months prior to such date; and
(b) The writing signed by a licensed
physician does not document the existence of any heart disease or any
cardiovascular or respiratory disease.
If the foregoing conditions are met, OP&F will then grant
the disability applicant a disability that is presumed to be on-duty, as
provided for in section
742.38 of the Revised
Code.
(2) For
disability benefit applicants who became "members" of OP&F after September
16, 1998, OP&F will consider the physical examination requirement set forth
in division (D)(3) of section
742.38 of the Revised Code to
have been met if the physician's report meets the requirements set forth in
paragraph (A)(3) of rule
742-1-02 of the Administrative
Code prior to the person becoming a "member" of OP&F or before the person's
entry into the department where the person is employed at the time of the
filing of the disability application, the physician's report does not diagnose
the existence of any heart disease or any cardiovascular or respiratory
disease.
If the foregoing conditions are met, OP&F will then grant
the disability applicant a disability that is presumed to be on-duty, as
provided for in section
742.38 of the Revised
Code.
(3) In the event the
record of a member's pre-employment physical is lost, destroyed or unavailable,
the board may waive the requirement that the absence of disease be evidenced by
a physical examination prior to employment as described in paragraphs (O)(1)
and (O)(2) of this rule if there is competent medical evidence, as determined
by the board's physicians and/or medical advisor, that the cardiovascular or
respiratory disease was not evident prior to or at the time of entry into the
department.
(4) For members who do
not meet the criteria set forth in division (D)(3) of section
742.38 of the Revised Code and
this rule, this will not preclude the member from being granted a duty-related
disability if the member is able to document that the disability resulted from
the performance of the member's official duties as a member of the police or
fire department, as the case may be.
(P) Firefighter cancer presumption:
(1) In order to be eligible for the
presumption described in division (D)(3)(b) of section
742.38 of the Revised Code, a
member of a fire department who is applying for disability with cancer as an
alleged disabling condition shall complete a questionnaire on a form provided
by OP&F. The questionnaire shall be submitted to OP&F at the time of
the initial application for disability benefits.
(2) If the member certifies on the
questionnaire required by paragraph (P)(1) of this rule that he or she was
assigned to at least six years of hazardous duty as a member of a fire
department and has had any exposure to an agent classified by the international
agency for research on cancer or its successor agency as a group 1 or 2A
carcinogen, the member shall provide OP&F with all documentation in support
of such certification, including exposure reports, incident reports, shift
logs, approved workers compensation claims, or other similar
documentation.
(3) The cancer
presumption can be rebutted by evidence that demonstrates that the cancer was
not incurred in the line of duty. Such evidence includes, but is not limited
to, documentation which shows that the member:
(a) Incurred the cancer before becoming a
member of a fire department;
(b)
Used cigarettes or other tobacco products, and such usage was a significant
factor in the cause or progression of the cancer;
(c) Was not assigned to at least six years of
hazardous duty as a member of a fire department, or fifteen years or more have
passed since the member was last assigned to hazardous duty as a member of a
fire department;
(d) Has not had
any exposure to an agent classified by the international agency for research on
cancer or its successor agency as a group 1 or 2A carcinogen;
(e) Incurred the cancer as a result of
employment or business that is secondary to his or her employment as a member
of a fire department;
(f) Is not
receiving workers compensation for a cancer diagnosis; and
(g) Has undergone genetic testing which
indicates a predisposition for contracting certain cancers.