San Jose Municipal Code Part 7 Retirement for Disability

As used in this chapter:

A. "Disability," "incapacity for the performance of duty," and "incapacitated for the performance of duty," as a basis for retirement, means disability of a member, short of death, of permanent or extended and uncertain duration, occurring while such member is a member of this system, as a result of injury or disease, which renders a person physically or mentally incapable of assuming the responsibilities and performing the duties of the position then held by him and of any other position in the same classification of positions to which the city may offer to transfer him, as determined by the independent medical panel or, upon appeal, by the administrative law judge, on the basis of competent medical opinion. It does not mean or include mere inability to assume said responsibilities or perform said duties.

1. "Disability," "incapacity for the performing of duty," and "incapacitated for the performance of duty," as a basis for retirement, also means disability of a member, short of death, of permanent or extended and uncertain duration, occurring while such member is a member of this system, not as a result of injury or disease, which renders a person mentally incapable of assuming the responsibilities and performing the duties of the position then held by him and of any other person in the same classification of positions to which the city may offer to transfer him, as determined by the independent medical panel or, upon appeal, by the administrative law judge on the basis of competent medical opinion. It does not mean or include mere inability to assume said responsibilities or perform said duties; provided, however, that notwithstanding any other provisions of this Chapter 3.36, including Sections 3.36.990, 3.36.1000 and 3.36.1010, no member shall be deemed disabled or incapacitated within the meaning of this section unless at the time such disability occurs he shall be entitled to credit for at least ten years of service in this system.

2. The provisions of this section shall be deemed to cover any member of this system whose disability or incapacity for the performance of duty occurred on or after the first day of April, 1968; provided that no benefits shall be payable hereunder for any period prior to the filing of an application for disability retirement or prior to the date upon which the retirement board makes a motion pursuant to Section 3.36.940. If any person whose disability or incapacity for the performance of duty, as said terms are defined in this section, occurred on or after the first day of April, 1968, files or has filed an application for disability retirement prior to the effective date of this section, the retirement board may, subject to other provisions of this chapter, grant a disability retirement allowance commencing on the date of the filing of such application with the retirement board.

B. "Nonservice-connected disability" means disability of a member other than a "service-connected disability."

C. "Service-connected disability" means disability of a member as a result of injury or disease arising out of and in the course of such member's employment with the city.

(Prior code §§ 2903.200, 2903.200a, 2903.201, 2903.202; Ord. 29879.)

A. Anything elsewhere in this chapter to the contrary notwithstanding, no person shall be entitled to any disability retirement or to any disability retirement allowance under the provisions of this chapter in any of the following situations as determined by the independent medical panel or, upon appeal, by the administrative law judge:

1. Where the person's disability occurred before he or she became a member of this retirement system; or

2. Where the person's disability occurs after he or she ceases to be a member of this retirement system or after he or she ceases to be an employee of the city; or

3. Where the person's disability occurs while he or she is on leave of absence from city employment for any purpose, except as provided in Subsections B. and C. of this Section 3.36.920; or

4. Where the person separated from city service on or after February 4, 2000, the person files an application for disability retirement on or after September 1, 2002, and the person has been separated from city service for more than one year as of the date the person's application for disability retirement is filed with the secretary to the board, except in the case where the person demonstrates by a preponderance of the evidence that the disability is due to diseases and/or conditions caused by exposure to workplace factors and/or conditions that at the time of separation from city service had no previous medical basis to be considered harmful; or

5. Where the person separates from city service on or after March 31, 2017, and the person does not file an application for disability retirement within one month of separation from city service, except in the case where the person demonstrates by a preponderance of the evidence that the disability is due to diseases and/or conditions caused by exposure to workplace factors and/or conditions that at the time of separation from city service had no previous medical basis to be considered harmful.

B. In the case of a member who otherwise satisfies the requirements of this chapter for a nonservice-connected disability retirement, Subsection A. of this Section 3.36.920 shall not apply and the independent medical panel or, upon appeal, the administrative law judge may grant a nonservice-connected disability retirement if the member's disability occurs while such person is on leave of absence for the purpose of engaging in military or naval duty for the United States of America in time of war or national emergency as proclaimed by the president or congress. The monthly retirement allowance for such nonservice-connected disability shall be reduced by the amounts received by the member pursuant to the United States Social Security Act or pursuant to any other federal disability benefits program where such amounts are paid to the member because of disability incurred while on leave of absence to engage in military or naval duty.

C. The provisions of this section shall not apply where the person's disability occurs while such person is on leave of absence with full city compensation and pay.

(Prior code § 2903.225; Ords. 24081, 26633, 29879.)

Notwithstanding anything contained in this chapter to the contrary, no member who is retired for service pursuant to the provisions of Part 6 of this chapter shall be eligible for or be entitled to retirement for any disability or for or to any benefits or allowances pursuant to the provisions of this Part 7 while he is so retired for service. Any and all disability retirement allowances otherwise payable to a person shall cease and terminate upon such person being retired for service.

(Prior code § 2903.217.)

A member who is eligible to retire for disability may be retired for disability, pursuant to and subject to the provisions of this chapter, on the retirement board's own motion, without a request or application therefor being made by the member or any other person.

(Prior code § 2903.203.)

A member who is eligible to retire for disability shall be retired for disability, pursuant to and subject to the provisions of this chapter, by the retirement board upon application being made therefor by any of the following persons:

A. The city manager;

B. The head of the office or department in which the member is or was last employed;

C. The member, or any authorized person on his behalf.

(Prior code § 2903.204.)

A. The retirement board on its own motion at any time may, and upon receipt of an application for disability retirement shall transfer the application to the independent medical panel to determine whether the member is disabled or incapacitated for the performance of duty, and to determine whether such disability or incapacity for performance of duty is a service-connected or nonservice-connected disability in those situations where the member's eligibility for disability retirement, or the amount of disability retirement allowance to which he or she may be entitled, is dependent upon such determination.

B. In addition, the member may submit a medical report from his or her own physician or surgeon. Where application for disability retirement is made by the member or on his or her behalf, a medical report by the member's private physician or surgeon shall be submitted with the application unless otherwise authorized by the independent medical panel. The independent medical panel may require additional medical examinations, or procure or require additional or other evidence before determining a member's disability.

C. Unless the independent medical panel extends the filing deadline:

1. Within one year of separation from service, members must submit medical documentation indicating the initial nature of their disability, including but not limited to, the current level of disability, any treatment underway at the time of application, and affected body parts where applicable; and

2. Applications for disability may not be deferred beyond four years from the date the disability application was submitted. The independent medical panel may only extend deadlines in the case of a deferred application when in the independent medical panel's opinion extenuating circumstances exist.

D. Where application for disability retirement is made by a member and one or more panel proceedings are held for the purpose of determining questions involving any right, benefit or obligation of a person under this Part 7, both the applicant and the city may have legal counsel present at any hearings. In addition, any decision made by the independent medical panel to approve or deny an application for disability retirement may be appealed to an administrative law judge pursuant to the provisions governing hearings by the State of California Office of Administrative Hearings, General Jurisdictional Division by the city or member. The request for appeal must be made in writing within forty-five days of the independent medical panel's decision. The hearing before the administrative law judge must be scheduled within ninety days of the notice of appeal unless a later date is agreed upon by the city and the member and approved by the administrative law judge. The administrative law judge's decision, or the independent medical panel's decision in the absence of an administrative law judge's decision, will be a binding determination within the meaning of California Code of Civil Procedure Section 1094.5 and shall be based on the information and documentation presented to the independent medical panel.

(Prior code § 2903.205; Ords. 19282, 26901, 29879.)

If the medical reports and other available evidence and information presented show to the satisfaction of the independent medical panel or, upon appeal, the administrative law judge that the member is incapacitated for the performance of his duty, and if such member is otherwise eligible to retire for disability pursuant to the provisions of this chapter, the board shall retire him for disability as soon as practicable after any appeal period has expired or been waived by the relevant party.

(Prior code § 2903.206; Ord. 29879.)

If the medical examination and other available evidence and information presented show to the satisfaction of the independent medical panel or, upon appeal, the administrative law judge that the disability is service-connected, it shall so find and declare such determination to the retirement board. If the medical examination and other available information presented shows to the satisfaction of the independent medical panel or, upon appeal, the administrative law judge that the disability is nonservice-connected, it shall so find and declare such determination to the retirement board. Based on such finding and declaration, the independent medical panel or, upon appeal, the administrative law judge shall instruct the board whether to retire the member for service-connected or nonservice-connected disability.

(Prior code § 2903.207; Ord. 29879.)

A. Subject to other provisions of this chapter, any member who is entitled to credit for two or more years of service (five or more years of service for tier 2 members) and who, during his or her membership in this system, is disabled and incapacitated for the performance of duty as a result of a nonservice-connected disability, may be retired by the retirement board pursuant to the provisions of this section for nonservice- connected disability, and shall be so retired at such member's request, regardless of such member's age.

B. No member disabled or incapacitated for the performance of duty as a result of a nonservice-connected disability shall be entitled to any disability allowance or other benefits under the provisions of this retirement system, if at the time such disability occurred, the member was entitled to credit for less than two (less than five for tier 2 members) full years of service.

(Prior code § 2903.211; Ords. 26901, 29266.)

A. Subject to the provisions of this chapter, a person who is retired for nonservice-connected disability, pursuant to Section 3.36.990, shall be paid from the retirement fund while the member is incapacitated for the performance of duty as a result of the nonservice-connected disability, a monthly allowance calculated in accordance with this section.

B. A member, other than a tier 2 member, who is entitled to credit for at least two but less than twenty years of service at the time the nonservice-connected disability occurs shall receive a monthly allowance equal to thirty-two percent of the member's final compensation, plus one percent of said final compensation for each full year of service for which the member is entitled to credit in excess of the first two years of service; provided, however, that in no event shall the total monthly allowance exceed fifty percent of the member's final compensation.

C. A member, other than a tier 2 member, who is entitled to credit for twenty or more years of service at the time the nonservice-connected disability occurs shall receive a monthly allowance as follows:

1. If such member's nonservice-connected disability retirement occurred prior to January 1, 1970, the monthly allowance shall be equal to fifty percent of such member's final compensation.

2. If such member's nonservice-connected disability retirement occurred on or after January 1, 1970, but prior to February 4, 1996, the monthly allowance shall be:

a. From and after the date of such member's retirement to September 1, 1970, the monthly allowance shall be equal to fifty percent of such member's final compensation plus one and two-thirds percent of said final compensation for each full year of service in excess of the first twenty years of service for which such member is entitled to credit; provided, however, that in no event shall the total monthly disability retirement allowance during said period of time exceed a maximum of sixty-six and two-thirds percent of such member's final compensation; and

b. From and after September 1, 1970, while so retired for disability, the monthly allowance shall be equal to fifty percent of such member's final compensation plus two and one-half percent of said final compensation for each full year of service in excess of the first twenty years of service for which such member is entitled to credit; provided, however, that in no event shall the total monthly disability retirement allowance exceed a maximum of seventy-five percent of such member's final compensation.

3. If such member's nonservice-connected disability retirement occurred or occurs on or after February 4, 1996, but prior to February 4, 2000, the monthly allowance shall be equal to fifty percent of such member's final compensation, plus three percent of said final compensation for each full year of service in excess of the first twenty years of service for which such member is entitled to credit; provided, however:

a. In no event shall the total monthly disability retirement allowance exceed a maximum of eighty percent of such member's final compensation.

b. This paragraph C.3. shall not apply in the case where the member was retired for service prior to February 4, 1996, was not reemployed by the city for any period on or after February 4, 1996, and the disability retirement is a result of a change in retirement status from service to disability. Under such circumstances, the disability retirement allowance shall be calculated in accordance with paragraph C.1. or C.2., above, as applicable.

4. Except as provided in paragraph C.5. or paragraph C.6. below, if such member's nonservice-connected disability retirement occurred or occurs on or after February 4, 2000, the monthly allowance shall be equal to fifty percent of such member's final compensation for up to the first twenty years of service, plus three percent of said final compensation for each of the next five full years of service in excess of twenty years, plus four percent of his or her final compensation for each full year of service in excess of the first twenty-five years of service; provided, however:

a. In no event shall the total monthly disability retirement allowance exceed a maximum of eighty-five percent of such member's final compensation.

b. This paragraph C.4. shall not apply in the case where the member was retired for service prior to February 4, 2000, was not reemployed by the city for any period on or after February 4, 2000, and the disability retirement is a result of a change in retirement status from service to disability. Under such circumstances, the disability retirement allowance shall be calculated in accordance with paragraph C.1., C.2. or C.3. above, as applicable.

c. This paragraph C.4. shall not apply to a tier 2 member.

5. With respect to those members of the plan who are employed in the police department:

a. If such member's nonservice-connected disability retirement occurred or occurs on or after February 4, 2000, but prior to July 1, 2006, and the member is not a tier 2 member the monthly allowance shall be calculated in accordance with paragraph C.4. above.

b. If such member is not a tier 2 member and such member's nonservice- connected disability retirement occurred or occurs on or after July 1, 2006, the monthly allowance shall be equal to two and one-half percent of his or her final compensation for each of the first twenty years of service, plus four percent of his or her final compensation for each full year of service in excess of the first twenty years of service; provided, however, that in no event shall the monthly service retirement allowance exceed a maximum of ninety percent of the member's final compensation.

c. This paragraph C.5. shall not apply in the case where the member was retired for service prior to July 1, 2006, was not reemployed by the city for any period on or after July 1, 2006, and the disability retirement is a result of a change in retirement status from service to disability. Under such circumstances, the disability retirement allowance shall be calculated in accordance with paragraph C.1., C.2., C.3. or C.4. above, as applicable.

6. With respect to those members of the plan who are employed in the fire department:

a. If such member's nonservice-connected disability retirement occurred or occurs on or after February 4, 2000, but prior to July 1, 2008, the monthly allowance shall be calculated in accordance with paragraph C.4. above.

b. If such member's nonservice-connected disability retirement occurred or occurs on or after July 1, 2008:

i. If the member was credited with less than twenty years of service credit on the date of retirement, the monthly allowance shall be calculated in accordance with paragraph C.4. above.

ii. If the member was credited with twenty or more years of service credit on the date of retirement, the monthly allowance shall be equal to three percent of his or her final compensation for each year of service credit; provided, however, that in no event shall the monthly service retirement allowance exceed a maximum of ninety percent of the member's final compensation.

c. This paragraph C.6. shall not apply in the case where the member was retired for service prior to July 1, 2008, was not reemployed by the city for any period on or after July 1, 2008, and the disability retirement is a result of a change in retirement status from service to disability. Under such circumstances, the disability retirement allowance shall be calculated in accordance with paragraph C.1., C.2., C.3. or C.4. above, as applicable.

D. For the purposes of this Section 3.36.995, "service" means service performed for the city, and for which the member is entitled to credit under the provisions of this chapter. "Service" shall not include service as an officer or employee of a reciprocal agency which is used to qualify for benefits pursuant to Section 3.36.3020.

E. Notwithstanding any other provision of this section, in computing the amount of allowance payable under this section for service in excess of the first twenty years, pro rata credit shall be given for a fraction of a full year.

F. A tier 2 member who is approved by the independent medical panel or, upon appeal, by the administrative law judge for a nonservice-connected disability and is entitled to credit for five or more years of service credit at the time the nonservice-connected disability occurs shall receive a monthly allowance calculated as follows:

1. If the tier 2 member has not attained age fifty, the monthly allowance is determined based on an annual benefit equal to one and four-fifths percent of final compensation times years of city service.

2. If the tier 2 member has attained at least age fifty, the monthly allowance is determined in accordance with Section 3.36.808 for those who are fire members and 3.36.809 for those who are police members.

3. If the tier 2 member is credited with less than five years of service credit on the date of retirement, the tier 2 member is not entitled to a nonservice-connected disability.

(Ords. 26901, 27721, 28300, 29266, 29879.)

Subject to other provisions of this chapter, any member who, during his or her membership, is disabled and incapacitated for the performance of duty as a result of a service-connected disability may be retired by the retirement board pursuant to the provisions of this section for service-connected disability, regardless of such member's age and regardless of such member's number of years of service credit.

(Prior code § 2903.209; Ord. 26901.)

A. Any member retired for service-connected disability pursuant to the provisions of Section 3.36.1000 shall thereafter be paid from the retirement fund, while incapacitated for the performance of duty as a result of such disability, subject to all other provisions of this chapter, a monthly disability retirement allowance in the following amount:

1. If such member's service-connected disability retirement occurred prior to January 1, 1970, the monthly allowance shall be equal to fifty percent of such member's final compensation.

2. If such member's service-connected disability retirement occurred on or after January 1, 1970, but prior to February 4, 1996, the monthly disability retirement allowance shall be as follows:

a. From and after the date of such member's retirement prior to September 1, 1970, the monthly allowance shall be equal to fifty percent of such member's final compensation plus one and two-thirds percent of said final compensation for each full year of service in excess of the first twenty years of service for which such member is entitled to credit; provided, however, that in no event shall the total monthly disability retirement allowance during said period of time exceed a maximum of sixty-six and two-thirds percent of such member's final compensation; and

b. From and after September 1, 1970, while so retired for disability, the monthly allowance shall be equal to fifty percent of such member's final compensation plus two and one-half percent of said final compensation for each full year of service in excess of the first twenty years of service for which such member is entitled to credit; provided, however, that in no event shall the total monthly disability retirement allowance exceed a maximum of seventy-five percent of such member's final compensation.

3. If such member's service-connected disability retirement occurred or occurs on or after February 4, 1996, but prior to February 4, 2000, the monthly allowance shall be equal to fifty percent of such member's final compensation plus three percent of said final compensation for each full year of service in excess of twenty years of service for which such member is entitled to credit; provided, however:

a. In no event shall the total monthly disability retirement allowance exceed a maximum of eighty percent of such member's final compensation.

b. This paragraph A.3. shall not apply in the case where the member was retired for service prior to February 4, 1996, was not reemployed by the city for any period on or after February 4, 1996, and the disability retirement is a result of a change in retirement status from service to disability. Under such circumstances, the disability retirement allowance shall be calculated in accordance with paragraph A.1. or A.2., above, as applicable.

4. Except as provided in paragraph A.5. or paragraph A.6. below, if such member is not a tier 2 member and such member's service-connected disability retirement occurred or occurs on or after February 4, 2000, the monthly allowance shall be equal to fifty percent of such member's final compensation, plus three percent of said final compensation for each year of the first five full years of service in excess of twenty years, plus four percent of his or her final compensation for each full year of service in excess of twenty-five years of service; provided, however:

a. In no event shall the total monthly disability retirement allowance exceed a maximum of eighty-five percent of such member's final compensation.

b. This paragraph A.4. shall not apply in the case where the member was retired for service prior to February 4, 2000, was not reemployed by the city for any period on or after February 4, 2000, and the disability retirement is a result of a change in retirement status from service to disability. Under such circumstances, the disability retirement allowance shall be calculated in accordance with paragraph A.1., A.2. or A.3. above, as applicable.

5. With respect to those members of the plan who are employed in the police department:

a. If such member's service-connected disability retirement occurred or occurs on or after February 4, 2000, but prior to July 1, 2006, the monthly allowance shall be calculated in accordance with paragraph A.4. above.

b. If such member is not a tier 2 member and such member's service-connected disability retirement occurred or occurs on or after July 1, 2006, the monthly allowance shall be equal to fifty percent of his or her final compensation, plus four percent of his or her final compensation for each full year of service in excess of twenty years; provided, however, that in no event shall the monthly allowance exceed a maximum of ninety percent of the member's final compensation.

c. This paragraph A.5. shall not apply in the case where the member was retired for service prior to July 1, 2006, was not reemployed by the city for any period on or after July 1, 2006, and the disability retirement is a result of a change in retirement status from service to disability. Under such circumstances, the disability retirement allowance shall be calculated in accordance with paragraph A.1., A.2., A.3. or A.4. above, as applicable.

d. A tier 2 member whose service-connected disability retirement occurs on or after August 4, 2013 and is approved by the independent medical panel or, upon appeal, by the administrative law judge, is entitled to a monthly allowance equal to the greater of:

i. Fifty percent of his or her final compensation; or

ii. An allowance calculated under the formula provided under Section 3.36.809 if the tier 2 member qualifies for a service retirement; or

iii. If the member does not qualify for a service retirement under Section 3.36.809, a benefit that is actuarially reduced by the plan's actuary for each quarter year that the member's service age is less than age fifty multiplied by the number of years of safety service subject to the applicable retirement formula.

6. With respect to those members of the plan who are employed in the fire department:

a. If such member's service-connected disability retirement occurred or occurs on or after February 4, 2000, but prior to July 1, 2008, the monthly allowance shall be calculated in accordance with paragraph A.4. above.

b. If such member's service-connected disability retirement occurred or occurs on or after July 1, 2008, the monthly allowance shall be equal to fifty percent of his or her final compensation; and, if the member had twenty or more years of service, an additional ten percent of said final compensation, plus three percent of his or her final compensation for each full year of service in excess of twenty years; provided, however, that in no event shall the monthly service retirement allowance exceed a maximum of ninety percent of the member's final compensation.

c. This paragraph A.6. shall not apply in the case where the member was retired for service prior to July 1, 2008, was not reemployed by the city for any period on or after July 1, 2008, and the disability retirement is a result of a change in retirement status from service to disability. Under such circumstances, the disability retirement allowance shall be calculated in accordance with paragraph A.1., A.2., A.3. or A.4. above, as applicable.

d. A tier 2 member whose service-connected disability retirement occurs on or after January 2, 2015 and is approved by the independent medical panel, or, upon appeal, by the administrative law judge, is entitled to a monthly allowance equal to the greater of:

i. Fifty percent of his or her final compensation; or

ii. An allowance calculated under the formula provided under Section 3.36.808 if the tier 2 member qualifies for a service retirement; or

iii. If the member does not qualify for a service retirement under Section 3.36.808, a benefit that is actuarially reduced by the plan's actuary for each quarter year that the member's service age is less than age fifty multiplied by the number of years of safety service subject to the applicable retirement formula.

B. For the purposes of this Section 3.36.1020, "service" means service performed for the city, and for which the member is entitled to credit under the provisions of this chapter. "Service" shall not include service as an officer or employee of a reciprocal agency which is used to qualify for benefits pursuant to Section 3.36.3020.

C. Notwithstanding any other provision of this section, in computing the amount of allowance payable under this section for service in excess of the first twenty years, pro rata credit shall be given for a fraction of a full year.

(Prior code § 2903.208; Ords. 23070, 25614, 26229, 26901, 27721, 28300, 28330, 29266, 29511, 29879.)

A. Notwithstanding anything else in this chapter, except as provided in Sections 3.36.1030.B and 3.36.1330 with respect to tier 2 members, from and after January 1, 1964, the amount of any monthly disability retirement allowance payable to any person under and by virtue of other provisions of this chapter shall be computed and determined as provided by other applicable sections of this chapter without any deduction being made because of any provisions of this section. Nothing herein contained, however, shall be deemed to authorize or require the recomputation or increase of the amount of any disability retirement allowance computed and paid prior to January 1, 1964, pursuant to the provisions of this section as it read prior to said date, it being the intent that the present provisions of this section shall operate prospectively as herein provided and not retroactively. No allowance or benefits payable under this system shall be modified because of any workers' compensation benefits which may become payable under the laws of the State of California to any member or to any recipient of any allowance or benefit payable under this system except as provided in Sections 3.36.1030.B and 3.36.1330.

B. In the event a tier 2 member is retired for a service-connected disability pursuant to Part 7 of this chapter and receives both a service-connected disability retirement allowance and a workers' compensation benefit for temporary disability, permanent disability or vocational rehabilitation temporary disability pursuant to Division 1 or Division 4 of the California Labor Code, then the service-connected disability retirement allowance shall be offset by such workers' compensation benefits in the same ratio as the city's contributions bear to the total contributions made to the plan on behalf of the member but shall up to a maximum aggregate amount of ten thousand dollars as follows:

1. The applicable amount of the workers' compensation benefits shall be converted to a monthly equivalent. The ratio equal to the amount the city's contributions bear to the total contributions made to the plan on behalf of the member will be determined and applied to the monthly equivalent. The monthly service-connected disability retirement allowance shall be reduced by the portion of the workers' compensation benefit monthly equivalent determined in the prior sentence.

2. The offset shall be in effect only during such times as concurrent retirement allowances and workers' compensation benefits are paid. In the case of the payment of a lump sum workers' compensation benefit (excluding payments for medical treatment), the offset shall apply only for such period of time as concurrent payments would have been made had the workers' compensation benefit been paid in installments.

3. In no case shall the offset reduce the service-connected disability retirement allowance to an amount less than the sum of the maximum retired member contributions for medical, dental, life, and accidental death insurance premiums, as determined by the city, plus one dollar. This limitation shall apply regardless of whether the retired member actually contributes towards the payment of such premiums. The maximum aggregate total of the workers' compensation offset will not be more than ten thousand dollars per employee.

4. No offset shall be made for permanent disability benefits paid to any retired tier 2 member of this system who has received a workers' compensation permanent disability rating of one hundred percent.

5. The offset shall not apply with respect to workers' compensation benefits paid for any injury or illness which did not cause or contribute to the disability, as determined by the independent medical panel or, upon appeal, by the administrative law judge, for which the service-connected disability retirement was granted.

6. There shall be no delay in the payment of retirement benefits pending resolutions of a workers' compensation claim. All awards shall be offset in accordance to 3.36.1030.B at the time of disability retirement payment. Should a pending or new workers' compensation claim be resolved after commencement of a disability retirement benefit, the calculation of the new offset will be made by the plan as soon as practically possible after notification of the award(s) and any disability retirement benefit overpayment resulting from the workers' compensation award(s) shall be paid back to the plan.

(Prior code § 2903.212; Ord. 29879.)

A. Except as provided in subsection E., as a condition of payment of a disability retirement allowance from the retirement fund, a person who has been retired for disability shall file written statements with the board which conform to the requirements of subsection B. below.

B. A recipient described in subsection A. shall file statements as described either in subsection A.1. or in subsection A.2.:

1. Monthly and annual statements.

a. Within ten days after the end of each calendar month, the recipient shall file a monthly statement of the total income and earnings received by the recipient during the reporting month from any gainful occupation, other than service as an officer or employee of the city, and the sources of such income and earnings; and

b. On or before May 1 of each year, the recipient shall file a notarized declaration under penalty of perjury, in a form approved by the board, of the total income and earnings received by the recipient during the preceding calendar year, or any portion thereof, from any gainful occupation outside city service and the sources of such income and earnings.

2. Income tax returns.

a. Instead of the statements described in subsection A.1., the recipient may file copies of the recipient's federal and state income tax returns and the recipient's W-2 and/or 1099 forms showing the total income and earnings received by the recipient from any gainful occupation, other than service as an officer or employee of the city, and the sources of such income and earnings. Such tax returns and forms shall be filed on or before the first day of May following the tax reporting period.

b. If a recipient elects to file tax returns, the recipient shall provide written notice of such election to the board not later than the date the next monthly statement would otherwise be due.

c. If a recipient elects to file tax returns, the recipient shall file with the board a written statement of the recipient's projected reportable income and earnings for each calendar year, and the sources of such income and earnings. Such statement shall be filed on or before the tenth day of January in the applicable calendar year. The recipient may file an amended statement in any case where there is a change in the projected income and earnings.

C. For the purposes of this section, income and earnings shall not include interest, dividends or rent.

D. If a recipient described in Subsection A. fails to furnish the information required by this section, the disability retirement allowance shall be discontinued until such time as the required information is furnished. When the required information is furnished, the disability retirement allowance shall be reinstated and allowances withheld pending receipt of the required information shall be paid, less any applicable deductions.

E. This section shall not apply to any recipient of a disability retirement allowance when either of the following conditions is satisfied:

1. The recipient retired for disability with at least twenty years of service credit in this plan; or

2. The recipient's service credit in this retirement plan plus the time the recipient has been retired for disability equals at least twenty years.

(Ords. 24915, 26901.)

A. In any case where the recipient of a disability retirement allowance meets the following conditions, the recipient's disability retirement allowance shall be reduced as provided in subsection B. below:

1. The recipient retired for disability with less than twenty years of service credit in this retirement plan and the sum of the recipient's service credit plus the time the recipient has been retired for disability is less than twenty years; and

2. The recipient is still incapacitated for the performance of duty; and

3. The recipient is engaged in a gainful occupation other than service as an officer or employee of the city.

B. During the period the recipient is engaged in gainful employment, the recipient's disability retirement allowance shall be reduced to the amount which, when added to the recipient's income or earnings from such gainful occupation and when also added to all other applicable deductions, if any, required by other provisions of this Chapter 3.36, shall not exceed the amount of the maximum compensation earnable in such period by a person holding the position which the recipient held at the time of retirement, or, if that position has been abolished, the maximum compensation earnable by a person holding it immediately prior to its abolition. In no event, however, shall the disability retirement allowance payable for any period exceed the amount of disability retirement allowance to which the recipient would have been entitled for such period in the absence of this section.

C. For the purposes of this section, income and earnings shall not include interest, dividends or rent.

D. Any overpayment of disability retirement allowance made to a recipient may be deducted from future allowances payable to the recipient or any beneficiary of the recipient or shall otherwise be collected from the recipient.

E. The following conditions shall apply in any case where, pursuant to Section 3.36.1035, the recipient has elected to file tax returns in lieu of monthly statements of income and earnings:

1. Reductions in disability retirement allowances shall be made based upon the statement of projected reportable income and earnings filed by the recipient.

2. Any overpayment of disability retirement allowance made during the applicable tax reporting period may be deducted from future allowances in substantially equal monthly deductions over a period not to exceed twelve months. If the deductions are made as provided in this subsection E., the deductions shall include interest on the outstanding overpayment at the actuarial rate adopted by the board.

3. Any underpayment of disability retirement allowance made during the applicable tax reporting period shall be paid to the disability retirement allowance recipient in one lump sum within thirty days of the verification of the underpayment by the secretary to the board.

F. When the sum of the recipient's service credit in this retirement plan plus the time the recipient has been retired for disability reaches twenty years, the deductions described in this section shall cease except to the extent necessary to recover any overpayment.

(Prior code § 2903.213; Ord. 24915.)

Editor's note— Ord. 27768, §§ 22 - 24, adopted June 20, 2006, repealed §§ 3.36.1050 - 3.36.1070, which pertained to reemployment of recipient in city service in new class of position - Deduction of earnings; refusal of reemployment with city; and disability while reemployed in new class of city positions.

The independent medical panel may at any time, or upon a request from the retirement board shall, require any recipient of a disability retirement allowance to undergo medical examination for that purpose at a reasonable time and place to be determined by the independent medical panel. Upon any such recipient's application for reinstatement to active duty, the independent medical panel shall order and cause a medical examination to be made of such recipient by the physicians or surgeons appointed or engaged by the independent medical panel. Any such order may be served upon said recipient either by personal service or by depositing the same in the United States mail, postage prepaid, addressed to the member at his latest address on file in the office of the secretary of the board, at least ten days prior to the date upon which he is to report to the physician or surgeon for examination. The recipient of the disability allowance may submit a medical report by his own physician or surgeon. Upon the basis of such examination, the independent medical panel shall determine whether the recipient is still incapacitated for the performance of duty, and if it finds that he is not, it shall so declare, whereupon, unless otherwise expressly provided elsewhere in this chapter, the disability retirement and disability allowance shall thereupon immediately cease and be deemed terminated.

(Prior code § 2903.218; Ord. 29879.)

A. If the independent medical panel determines that a recipient of a disability allowance granted pursuant to the provisions of this chapter is no longer incapacitated for performance of duty, and if as of the date of such determination such person is not yet fifty-five years of age (fifty-seven years of age for a tier 2 member), such person shall, subject to the civil service provisions of the city, and subject to the provisions of this chapter, be reinstated either:

1. In the position held by him or her at the time retired for disability; or

2. In another position in the same classification of positions as the one held by him or her at the time he or she was retired, with duties within his or her capacities; provided however, that if such reinstatement occurs on or after August 4, 2013, and the employee meets the definition of tier 2 member under Section 3.36.020.15, such reinstated employee shall become a tier 2 member and any subsequent retirement or disability retirement allowance payable after the reinstatement shall be computed under the provisions applicable to tier 2 members.

B. If a recipient of a disability allowance granted pursuant to the provisions of this chapter should, upon attaining the age of fifty-five years (fifty-seven years for a tier 2 member), still be incapacitated to perform the duties of the position held by him or her at the time of retirement, and of any other position in the same classification of positions as the one held by him or her at the time of retirement pursuant to the provisions of this chapter, the recipient shall no longer be subject to recall to duty.

C. Notwithstanding Subsection B., the recipient of a disability allowance granted pursuant to this chapter may, subject to the civil service provisions of the city, be voluntarily reinstated to a position in the same classification of positions as the one held by him or her at the time of retirement. Upon reinstatement from disability retirement, the disability retirement allowance shall be canceled and the person shall again become a member of this retirement plan with credit for those years of service for which the person was entitled at the time of retirement; provided, however, that if the reinstatement occurs on or after August 4, 2013 and the person meets the definition of tier 2 member under, Section 3.36.020.15, such person shall become a tier 2 member, and any subsequent retirement allowance payable on or after August 4, 2013, shall be computed under the provisions applicable to tier 2 members.

(Prior code § 2903.219; Ords. 26901, 29266, 29879.)

If the independent medical panel finds that the recipient of a disability allowance is no longer incapacitated for duty, and if such person is entitled to reinstatement to duty as provided in Section 3.36.1090, but such person fails to report for duty upon reinstatement or rejects an offer of reinstatement, all rights granted him by this chapter shall thereupon be cancelled and neither he nor his survivors shall be entitled to any benefits provided by this chapter.

(Prior code § 2903.220; Ord. 29879.)

If any recipient of a disability retirement allowance fails or refuses to submit to medical examination or examinations as ordered or required by the independent medical panel or administrative law judge, upon certification by the panel to the board, the board shall thereupon terminate said person's disability retirement and disability retirement allowance, in which event, subject to the following provisions, such person shall have no right to restoration to duty under or by virtue of any provisions of this chapter, nor shall he or any of his survivors nor his estate thereafter be entitled to any allowances or benefits under this system; provided, however, that if said person should apply for reinstatement of said disability retirement within one year from and after the date of termination of said retirement, and if he should prove to the satisfaction of the independent medical panel that his disability continues and has not ceased, upon certification by the independent medical panel to the board, the board may reinstate said disability retirement and disability allowance as of the date of the order of such reinstatement or as of such prior date which the board should find to be just and reasonable; and provided further, that if said person should die before having said disability retirement and disability retirement allowance reinstated as aforesaid and within one year from and after the date that the board terminated said disability retirement, then in that event the surviving spouse or surviving child or children of said deceased person or his estate may, within said one year from and after the date the board terminated the retirement allowance, apply to the board for such survivor's or death benefits, if any, as they would be entitled to if the deceased person's disability retirement had not been terminated as aforesaid, and if they should prove to the satisfaction of the independent medical panel that the deceased person's original disability continued to the time of his death, the board upon a determination by the independent medical panel may grant to them such survivorship or death allowances or benefits as they would have been entitled to if the abovementioned disability retirement had not been terminated as aforesaid. In no event shall said disability retirement or disability retirement allowance be reinstated unless application therefor has been made within one year from and after the board terminated such retirement; and in no event shall any survivorship allowances or death benefits be granted to anyone pursuant to the provisions of this section unless application therefor has been made within one year from and after the date the board terminated said disability retirement.

(Prior code § 2903.223; Ord. 29879.)

Anything elsewhere in this chapter to the contrary notwithstanding, the payment to and receipt by any person of any disability retirement allowance or allowances shall constitute and be deemed to be a return to and withdrawal by such person, to the extent of the amount of such allowance or allowances so paid to and received by him, of any and all contributions theretofore made by such person to the retirement fund prior to the date he was retired for disability, and the amount of such allowance or allowances so paid to and received by him shall be deducted from the amount of accumulated contributions in the fund which are credited to him. Nothing herein contained, however, shall be deemed to restrict the amount of disability allowances payable to any such person to the amount of contribution theretofore contributed by him to the fund, it being the intent that such allowances shall continue to be paid to such person as provided by and subject to other provisions of this chapter even after all contributions standing to his credit shall have been so withdrawn and exhausted.

(Prior code § 2903.226.)

Anything elsewhere in this chapter to the contrary notwithstanding, if the disability for which a person has been granted a disability retirement or disability retirement allowance pursuant to the provisions of this chapter should cease, and if, in addition, such person should be then ready, willing and able to be reinstated to duty in and to assume and perform the responsibilities and duties of the position from which he was retired for disability and of any other position in the same class or positions, then in that event such person shall nonetheless continue to be deemed retired for this disability which no longer exists and continue to be entitled to such disability retirement allowance, if any, as he would be entitled to under the provisions of this chapter if the disability for which he was retired had not ceased, until he is reinstated to duty in the position from which he was retired or in any other position in the same class or positions, or until he rejects an offer of reinstatement in any such position, or until he refuses or fails to report to duty in any such position when requested to do so, or until he becomes unable for any reason to accept reinstatement to duty in or to assume and perform the responsibilities and duties of the position from which he was retired or of any other position in the same class of positions, whichever is the sooner; provided, however, that nothing contained in this section shall be deemed to deprive the retirement board of any rights which it might otherwise have under other provisions of this chapter to cancel, terminate, suspend or reduce said retirement or retirement allowance for any reason or reasons other than the fact said disability has ceased.

(Prior code § 2903.227.)

Any and all disability retirement allowances otherwise payable to a person may be cancelled and terminated by the retirement board, in its sole discretion, if the recipient thereof should commit treason or be convicted of a felony. Such cancellation and termination shall not affect survivors' benefits and death benefits set forth in Part 8 of this chapter if such benefits would otherwise be payable. At any time after cancellation and termination of retirement allowances pursuant to this section, the board may in its sole discretion pay to the spouse and/or minor children under the age of eighteen of the convicted person all or any portion of the retirement allowance which would have been payable to the convicted person, for such period and subject to such conditions as the board in its sole discretion determines or imposes, and subject to the further right and power of the board to cancel such payments to the spouse and/or minor children at any time, in its sole discretion, with or without notice. Such payment to the spouse or minor children shall not be made until and unless application therefor shall have been made and the board shall have determined that the allowance or a portion thereof is required to provide the spouse or minor children with necessaries of life.

(Prior code § 2903.224; Ord. 23807.)