(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 rule 742-3-12 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 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 thirty day period referred to in this
paragraph, the appellant may, for good cause shown, be granted an extension of
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 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.
