(a) Service-Connected Disability. Upon the filing of the Member’s written application for a disability pension or upon the filing of a written request therefor by or on behalf of the head of the department in which the Member is a Department Member, any Tier 5 Plan Member whom the Board shall determine has become physically or mentally incapacitated by reason of injuries received or sickness caused by the discharge of the duties of such person as a Department Member, and who is incapable as a result thereof from performing the Member’s assigned duties, or those to which the Member would be assigned within the Member’s civil service classification if returned to duty, shall be retired by order of the Board from further active duty as a Department Member.
A Tier 5 Plan Member’s incapacity is caused by the discharge of the Member’s duties if there is clear and convincing evidence that the discharge of the Plan Member’s duties is the predominant cause of the incapacity.
A Tier 5 Plan Member retired under the provisions of this subsection shall be paid thereafter a monthly service- connected disability pension in an amount which shall be equal to the same percentage of the Plan Member’s Final Average Salary as the Board shall determine, from time to time, to be the percentage of the Member’s disability. Such pension shall be in an amount of not less than 30% and not more than 90% of the Retired Tier 5 Plan Member’s Final Average Salary, but in no case shall the pension be less than the equivalent of 2% of Final Average Salary for each Year of Service of the Retired Tier 5 Plan Member.
No Retired Tier 5 Plan Member, while retired pursuant to this subsection, ever shall be paid any pension pursuant to Section 4.2004 or subsection (b) of this section.
(b) Nonservice-Connected Disability. Upon the filing of the Member’s written application for disability pension by a Tier 5 Plan Member who shall have five Years of Service or more, or upon the filing of a written request with respect to such a Plan Member by or on behalf of the head of the department in which the Member is a Department Member, any Tier 5 Plan Member whom the Board shall determine has become physically or mentally incapacitated by reason of injuries or sickness other than injuries received or sickness caused by the discharge of the duties of such person as a Department Member, and who is incapable as a result thereof from performing the Member’s assigned duties or those to which the Member would be assigned within the Member’s civil service classification if returned to duty, shall be retired by order of the Board from further active duty as a Department Member. As a further condition of entitlement to such a pension, the Board shall also determine that such disability was not principally due to or caused by voluntary action of the Plan Member intended to entitle the Member to a nonservice-connected disability pension.
A Retired Tier 5 Plan Member, retired under the provisions of this subsection shall be paid thereafter a monthly nonservice-connected disability pension in an amount which shall be equal to the same percentage of the Retired Member’s Final Average Salary as the Board shall determine, from time to time, to be the percentage of the Retired Member’s disability; but such pension shall be in an amount of not less than 30% and not more than 50% of the Retired Tier 5 Plan Member’s Final Average Salary.
No Retired Tier 5 Plan Member, while retired pursuant to this subsection, ever shall be paid any pension pursuant either to Section 4.2004 or to subsection (a) of this section.
(c) Determination of Disability. Upon the filing of any written application or request for a disability pension, as referred to in subsections (a) and (b) of this section, the Board:
(1) shall cause the Tier 5 Plan Member to be examined by and a written report thereon rendered by at least three regular licensed and practicing physicians selected by it;
(2) shall hold a hearing with respect to such application or request;
(3) shall receive or hear such other evidence relating to or concerning the Tier 5 Plan Member’s disability or claimed disability as may be presented to it.
The Board shall have the power to hear and determine all matters pertaining to the granting and denying of any such application or request for a disability pension. The Board first shall determine whether or not the Tier 5 Plan Member is incapable of performing the Member’s assigned duties or those to which the Member would be assigned within the Plan Member’s civil service classification if returned to duty. If the Board were to determine that the Member is not so incapable, it then shall be the duty of the Board to deny the application or request. If the Board were to determine that the Member is so incapable, it then shall determine, pursuant to the language used in subsections (a) and (b) of this section, whether the Member’s incapacity or disability is service-connected or nonservice-connected. The Board then shall determine the percentage of the Member’s incapacity or disability, within the limitations prescribed in subsections (a) and (b) of this section, and shall grant the application or request accordingly. If the Board were to determine that the disability is nonservice-connected, and that the incapacity or disability was principally due to or caused by voluntary action by the Tier 5 Plan Member intended to entitle the Member to a nonservice-connected disability pension, it then shall be the duty of the Board to deny the application or request. The Board upon its own motion or upon the written request of any Retired Tier 5 Plan Member, retired pursuant to subsections (a) or (b) of this section, shall have the power to consider new evidence pertaining to the case of any such Retired Tier 5 Plan Member and to increase or decrease the percentage of the Member’s incapacity or disability within the limitations prescribed in subsections (a) or (b) of this section; but any such increase or decrease shall be based only upon injuries or sickness for which the Member was retired. In the case of any former Tier 5 Plan Member who became such by reason of the Member’s resignation or discharge as a Department Member, the Board, in order to grant any application filed by the Member for a disability pension, must also determine, in addition to all of the foregoing, that any existing incapacity or disability upon the Member’s part occurred prior to the termination of the Member’s active status as a Department Member and had been continuous up to the date of the Board’s determinations.
The Board shall use the disability rating schedule adopted for Tier 3 to assist in standardizing disability pension awards.
(d) Termination of Disability Pensions. The pension of any Retired Tier 5 Plan Member, retired pursuant to subsections (a) or (b) of this section and whose active status as a Department Member had been terminated by reason of the Retired Member’s retirement, shall cease when the incapacity or disability for which the Retired Member had been retired shall cease and the Retired Member either:
(1) shall have been restored to active duty as a Department Member in the same permanent rank which the Retired Member had held as of the date of retirement; or
(2) shall have been ordered restored to active duty as a Department Member in such same permanent rank and shall have declined, refused or neglected to report therefor or to perform duties as such.
Any former Tier 5 Plan Member who has been retired for more than five years from the date of the Board’s action by which the Retired Member was retired may never be restored to active duty as a Department Member. The pension of any Retired Tier 5 Plan Member, retired pursuant to subsections (a) or (b) of this section and whose active status as a Department Member had been terminated by reason of the Retired Member’s resignation or discharge as such, shall cease when the incapacity or disability for which the Retired Member received a disability pension shall cease. The Board shall have the power to hear and determine upon its own motion all matters pertaining to the termination of any such pension.
After a Retired Tier 5 Plan Member, whose active status as a Department Member has been terminated by reason of the Retired Member’s retirement, has been retired on a service-connected disability pension or on a nonservice- connected disability pension for five years, and has been found to be no longer disabled, the Board shall adjust such Retired Tier 5 Plan Member’s pension to 30% of the Retired Member’s Final Average Salary. The adjusted pension shall reflect such cost of living adjustments as would have occurred had the Retired Tier 5 Plan Member’s pension originally been based on such adjusted percentage.
(e) Periodic Medical Examinations. Except in those instances in which the Board has determined that, due to the nature of the disability, no purpose would be served in having periodic medical examinations to determine whether or not a Retired Tier 5 Plan Member is still disabled, all Retired Tier 5 Plan Members on a disability pension shall undergo medical examinations at periodic intervals, as determined by the Board, for the first five years of their disability retirement. Retired Tier 5 Plan Members who receive service-connected disability pensions exceeding 30% of Final Average Salary and Tier 5 Plan Members who terminated City employment by reason of resignation or discharge prior to being granted a disability retirement, shall thereafter undergo medical examinations as determined by the Board.
If a Retired Tier 5 Plan Member resides outside of the State of California, the Board shall have the authority to order medical examinations of Retired Tier 5 Plan Members at any place it may determine to be desirable and shall, if it is determined that it would impose hardship on the person to be examined to travel to such place, have the authority to defray the reasonable cost of any such travel required.
(f) Assessing Cost for Missed Medical Appointments. The Board shall have the authority to provide, by rule, for assessing the cost of medical appointments missed by disability pension applicants, or by Retired Tier 5 Plan Members on a disability pension, where such missed appointments were not caused by factors beyond the control of the Tier 5 Plan Member or Retired Tier 5 Plan Member.
(g) Re-application After Denial of Disability Pension. The Board shall establish reasonable rules governing the re-application by Plan Members for a disability pension where an application has been denied and a new application has been filed subsequently for the same or similar medical reasons as those which were the basis of a previously denied application.
(h) Transfers Under Civil Service. For a period of one year following the effective date of a Retired Tier 5 Plan Member’s disability pension, such Retired Plan Member shall be eligible for status without examination under the provisions of Section 1014 of the Charter in civil service classifications other than those that would entitle the Retired Member to membership in any Tier of the Fire and Police Pension Plan but the provisions of this subsection shall not apply to former Plan Members whose status as Department Members had terminated by reason of resignation or discharge.
(i) Exclusion for Willful Conduct. In making its determinations and findings relative to subsections (a), (b), and (c) of this section, the Board shall consider whether and to what extent the activity giving rise to the disability of a member of the Police Department was caused or aggravated by such member’s willful misconduct. If the Board finds that the disability was caused or aggravated by such willful misconduct, the Board shall deny the Plan Member’s application for a disability pension. The provisions of this subsection shall be applicable only to those Plan members who became members of the Police Department on or after July 6, 1992.
SECTION HISTORY
Added by Ord. No. 174,367, Eff. 12-19-01.