§ 120.208. Disability.

(a)

A member shall be disabled if the member has suffered an illness, injury or disease which renders the member permanently and totally incapacitated, physically or mentally, as established by competent medical evidence from regular and continuous duty as an employee or officer of the City, as established by competent medical evidence. The term "regular and continuous" as used in the foregoing sentence shall not require that an employee or officer be able to perform all of the duties set forth in the job description, but shall mean the ability to perform work within the employee or officer's classification for which a position has been made available by the City, consistent with the physical or mental health of the member.

(b)

In the case of a disability arising from an accident, injury or illness incurred in the performance of service with the City, the long-term disability benefits shall be equal to 50 percent of the member's earnable compensation at the time of disability. There shall be no minimum period of service for a service-related disability.

(c)

In the case of a disability not arising from an accident, illness or injury arising in the performance of service with the City, the long-term disability benefit shall be equal to 25 percent of the member's earnable compensation at the time of disability. In the event the member has more than five years of service, the non-service related disability benefit shall be increased by two and one-half percent of the member's earnable compensation for each year after five years of service to a maximum of 50 percent. There shall be no non-service-related disability benefits for members with less than five years of service at the time of disability. In that event, members separating from service shall receive a return of employee contributions.

(d)

Long-term disability benefits shall be payable until the earlier of recovery and return to work or death; upon the death of a member, the benefit shall be paid at 75 percent to the eligible surviving spouse as defined in Section 120.207(a).

(e)

No member shall be eligible to receive disability benefits during any period of time that the member is receiving a salary from the City. Disability benefits shall not be reduced because the member is or was receiving workers' compensation payments unless the sum of the disability benefits and workers' compensation exceed the compensation on which workers' compensation benefits are computed. In such case, the disability benefits shall be reduced to an amount which when added to the workers' compensation payment will equal the compensation on which workers' compensation benefits are computed.

(f)

Disability benefits shall be paid bi-weekly. No benefit shall be paid until the Pension Board of Trustees has actually considered and approved the members' entitlement to disability.

(g)

No disability benefit payable shall be reduced by any outside income from any gainful employment or occupation engaged in while disabled.

(h)

In the case of a member who is vested at the time of the disability, any time service retirement benefit payments from the Plan shall be reduced by the amount of disability benefit payments received, up to the amount of the disability benefit. If the accrued time service retirement benefit payment exceeds the disability benefit payment, the Plan shall pay the difference. In the case of a vested member who is receiving disability benefits and who dies prior to the date of eligibility for Plan benefits, the employee contributions to the Plan shall be refunded in accordance with the provisions of Section 120.203(h). In the case of a non-vested member who becomes eligible to receive disability benefits, the employee contributions to the Plan shall be refunded in accordance with the provisions of Section 120.203(h). Vested members who are receiving disability benefits shall not be entitled to any retirement benefits except as stated in this paragraph.

(i)

The Pension 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 or denial of equal protection of the law.

(j)

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. 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.

(k)

Application for disability shall be made on a form prescribed by the Pension 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 may 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 in this section.

(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 applicable law. 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. If the Committee recommends denial of the disability benefit, the applicant may make a formal appeal to the Board.

(m)

The Pension Board of Trustees may prescribe rules of procedure to implement the provisions of the Disability Program relating to the conduct of disability hearings.

(n)

No member shall be granted a disability benefit upon a determination by the Pension Board of Trustees that the disability resulted from:

(i)

Excessive and habitual use of drugs, intoxicants or narcotics;

(ii)

Injury or disease sustained while willfully and illegally participating in fights, riots, or civil insurrections, or while committing a crime;

(iii)

Injury or disease arising from service in the armed forces which entitle the member to disability benefits from the former employer;

(iv)

Self-inflicted wounds or conditions.

(o)

A portion of the member contributions, as defined in Section 120.203(a), equal to three tenths percent (0.3%), shall be picked-up to fund the disability benefit. The City shall contribute such additional sums as are necessary to fund the disability benefit on a sound actuarial basis.

(Ord. 2005-432-E, § 2; Ord. 2007-1136-E, § 1; Ord. 2017-258-E , § 1)