(a) Definition of disabled member. A member is disabled (or continues to be disabled) if, because of bodily injury, disease or mental illness, the member is incapacitated for life, in spite of reasonable accommodations by the city, from performing the essential functions of:
(1) The trade, profession or occupation in which the member was employed by the city when the member suffered the bodily injury, disease or mental illness; and
(2) Any other position which the board determines to be reasonably comparable to the position held by the member, taking into account the member’s education, qualifications, experience, salary and other factors which the board deems appropriate; provided, however, that no physical condition existing at the time of entry into the fund shall be a basis for a disability pension prior to vesting.
(b) General provisions.
(1) Such disability must exist for at least 90 consecutive days prior to application for a disability pension.
(2) Such disability must not have been contracted, suffered or incurred while the member was engaged in, or did not result from the member having engaged in, a criminal enterprise, or from habitual drunkenness, addiction to narcotics, self-inflicted injury, or from voluntary or involuntary service in the Armed Forces of the United States (including the United States Merchant Marine), any of its allies or any other foreign country.
(4) To assist the board in making disability determinations, the city shall provide the executive director with city job descriptions and qualifications, related salary ranges and other appropriate information as requested.
(5) Continuation of a disability pension, whether granted before or after the enactment of this article, shall be subject to all the provisions of this section, including review and determination of the member’s eligibility for a disability pension.
(c) Qualification for disability pension.
(1) A member shall not qualify for a disability pension as hereinafter provided unless one or more duly licensed and practicing physician(s) appointed by the executive director has determined that the member is not capable of performing the essential functions of the positions identified under this section. Determination of the existence of disability shall not be made until 90 days after the date such disability is alleged to have commenced, and benefits shall not commence before the first day of the month following the month in which such 90-day period ends.
(2) The executive director shall have the appointed physician(s) conduct an annual medical examination after a disability pension has been granted (unless deemed not necessary by the executive director due to the member’s medical condition) and at any other time deemed necessary by the board in order to determine whether the disability is continuing. The fund will pay the expenses for medical examinations directed by the executive director or board. To continue to receive a disability pension, the member shall submit to any medical examination required by the executive director or board.
(3) If at any time the board is in reasonable doubt as to whether the member is disabled as above defined, it may suspend the disability pension until the doubt is resolved, which shall occur within a reasonable time. Any disability pension shall be terminated upon the board’s determination that the member is not disabled as defined in this section.
(4) No disability pension coverage shall be provided during a service break in excess of 90 consecutive days unless the service break was caused by sickness or accident leading to total disability.
(5) The disability pension specified herein shall not be payable during any period for which wages are received from the city, the State of Texas or any other branch of government while performing the duties of a firefighter or peace officer.
(6) Falsification or omission on any part of the employment application of prior conditions or injuries for which a disability pension is or has been sought, falsification or omission on any part of the disability pension application, or falsification or omission in connection with the continuation of a disability pension shall constitute grounds for denial of a disability pension or for revocation of any disability pension previously granted.
(7) The board’s determination on all matters concerning the granting, refusing or revoking of a disability pension shall be final and conclusive on all parties, and no appeal can be made therefrom. A member is entitled to a reasonable hearing (at which the member may appear in person, with or by a representative, or in writing) before the board makes its determination.
(8) No disability pension shall be granted (or continued) while the member is working for the city; provided however, a member may be granted a disability pension if the executive director or the board has been informed by the city that the member’s employment is about to be terminated by the city because of the member’s inability to perform the essential functions of the member’s position. Any such disability pension granted under this subsection (c)(8) shall not become effective until the month after the member has stopped working for the city.
(9) Except as otherwise provided by law, to be eligible to continue receiving a disability pension, a member must have complied with the medical recommendations (including rehabilitation therapy and treatment) as prescribed by the member’s treating physician(s), the physician(s) appointed by the executive director and/or the Texas Rehabilitation Commission.
(d) Calculation of disability pension. The calculation for disability pension can be found in the following sections:
(1) Section 2.5-26 for a group III member;
(2) Section 2.5-36 for a group IV member;
(3) Section 2.5-46 for a group I member;
(4) Section 2.5-56 for a group II member;
(5) Section 2.5-66 for a group V firefighter; and
(6) Section 2.5-76 for a group VI firefighter.
(e) Recovery from disability. If the board determines that a disabled member receiving a disability pension hereunder is no longer disabled as above defined, the member’s disability pension shall immediately cease. If such member is re-employed by the city immediately following such determination by the board, the member’s fund membership shall be reinstated as of the date of such re-employment, with full credited service to the date of disability. The member shall receive no additional credited service for the period of disability, provided however, that such period of disability shall be used to determine attainment of normal retirement date and special retirement date. If such member is not re-employed by the city immediately following certification of recovery, the member shall be considered as a terminated fund member and shall have no further interest in the fund other than a refund of any excess of the member’s total contributions, plus regular interest, less the amount already received from the member’s cash balance account, if applicable, over the total of disability payments made to the member; provided, however, that if such member had a vested interest in pension credits as of the date of which the member was certified disabled, the member shall receive a vested termination pension from the later of the date of certification of recovery or attainment of the vested retirement date under § 2.5-24, 2.5-34, 2.5-44, 2.5-54, 2.5-64 or 2.5-74, whichever is applicable, equal to the amount which would have been payable under the provisions of this section had the member terminated employment on the date the disability pension began. Any death benefits thereafter shall be determined in accordance with the applicable provisions of this article.
(f) Report of earned income or net earnings from self employment.
(1) Any disabled member who has not attained normal retirement date or special retirement date and who is receiving a disability pension shall submit to the executive director prior to May 1 of each year following disability retirement a copy of the member’s signed income tax return filed for the preceding year, with all attachments thereto, along with all tax returns and attachments for all of the member’s affiliated entities, including, but not limited to, partnerships, corporations or other entities in which the member, or any relative, owns any interest, including community or separate property, and for which the member performs any services, whether compensated or not, as proof of the member’s earned income and net earnings from self-employment for that year obtained from any occupation or employment. At the end of the first year of disability retirement and by May 1 of each subsequent year, a disabled member shall also submit to the executive director an affidavit on the executive director’s approved form swearing that the member’s earned income and net earnings from self-employment are fully disclosed on the tax returns provided to the executive director and that the disabled member has not received any other compensation, directly or indirectly, for services rendered by the disabled member, nor performed any services for which the member received no compensation except as disclosed in the affidavit, including amounts paid to other affiliated entities for the benefit of the disabled member or to any relative of the disabled member. If the Internal Revenue Service has approved an extension to file a tax return and the tax return has not been filed by May 1, the member shall provide the executive director with a copy of the extension by May 1, and a copy of the tax return with all attachments and the related affidavit, within two weeks after the tax return has been filed.
(2) If the disabled member’s total receipt of earned income, net earnings from self-employment, and city disability pension exceed the annualized base hourly rate of pay the member would have made during that same tax year had he or she remained employed by the city in the same position then, as soon as practicable, the board shall reduce the amount of disability benefits to be paid to the member. In reducing a member’s disability pension due to such excess earnings, the board shall consider the member’s then current earnings, and attempt to recover the cumulative excess earnings and preclude excess earnings in the future. In the event that a member’s disability pension is reduced in excess of the amount required, the board shall pay such excess to the member. For purposes of this subsection (f), base hourly rate of pay shall not include overtime, acting, assignment, holiday, longevity, educational incentive, safety award, incentive, shift differential or any other special or premium pay.
(3) The board shall withhold a disabled member’s disability pension upon the member’s failure to submit on a timely basis the required income tax returns with all attachments thereto and related documents. If the disabled member subsequently provides the required documentation by the end of the calendar year in which the return was due, the board shall cause the member’s disability pension to be reinstated, subject to the other provisions of this section, and including the payment of any previously withheld amounts, without interest. If the disabled member fails to provide the required documentation by the end of the calendar year in which the return was due, the disabled member’s disability pension shall be terminated and the member shall not be entitled to any payment for the period during which the documentation was not provided.
(4) For purposes of this section, any amounts paid to a disabled member’s affiliated entity in connection with the performance of services by the disabled member shall constitute “earned income,” and any attempt to circumvent the limitations under this article on earned income and net earnings from self-employment through the use of affiliated entities shall be grounds for the board to terminate the disabled member’s disability pension.
(Ord. 20471-10-2012, § 2, passed 10-23-2012; Ord. 21459-09-2014, § 1, passed 9-16-2014; Ord. 21510-10-2014, § 1, passed 10-21-2014; Ord. 22977-10-2017, § 1, passed 10-24-2017)