Sec. 33-43. Disability retirement. [Note]
(a) Applicability. This Section applies to an application for disability benefits filed by any member or a medical reevaluation of a disability retiree under subsection (g).
(b) Definitions. In this Section, the following words and phrases have the following meanings:
Applicant means any member who has filed an application for disability retirement under subsection (d)(1).
Disability Arbitration Board or Board means one of the 3 panels designated under subsection (m)(1) to review an appeal of the Chief Administrative Officer's final decision regarding an application for disability benefits filed by any member except a member of the Police Bargaining Unit.
Disability Review Panel or Panel means the 4 medical doctors appointed as Panel members by the Chief Administrative Officer under subsection (c).
Medical doctor means a doctor of medicine or osteopathy who graduated from a medical school accredited by the American Medical Association and is licensed to practice medicine in Maryland.
Medical specialty means a field of medicine, such as orthopedic surgery or neurology, which requires specialized training and certification.
Occupational medicine means a medical speciality which focuses on the health of workers, including the ability to perform work; the physical, chemical, biological, and social environments of the workplace; and the health outcomes of environmental exposures. Practitioners of occupational medicine address the promotion of health in the work place and the prevention and management of occupational and environmental injury, illness, and disability.
Partial incapacity means a member’s inability to perform one or more essential functions of the position the member holds because of impairment that:
(1) is unlikely to resolve in the next 12 months;
(2) may be permanent; and
(3) does not prevent the member from performing any other substantial gainful activity.
Police Disability Arbitration Board or Police Board means the 3 persons designated under subsection (m)(1) to review an appeal of a decision by the Chief Administrative Officer affecting a member of the Police Bargaining Unit’s right to disability benefits.
Residual functional capacity means what the individual can still do, despite the individual’s impairment. The County must give the term residual functional capacity the same meaning as the term is given by the U.S. Social Security Administration.
Substantial gainful activity means a level of productive work that requires significant physical or mental duties, or a combination of both, performed for pay or profit on a full- time or part-time basis. An individual is able to perform a substantial level of work if the individual is able to earn more than the U.S. Social Security Administration’s current monthly earnings limit for a disabled person. The County must give the term substantial gainful activity the same meaning as the term is given by the U.S. Social Security Administration.
Total incapacity means the member's inability to perform substantial gainful activity because of an impairment that:
(1) is unlikely to resolve in the next 12 months; and
(2) may be permanent.
(c) Selection of the Disability Review Panel.
(1) The Chief Administrative Officer must appoint 4 members of the Disability Review Panel from a list of at least 5 impartial, unbiased medical doctors willing and able to serve provided by one or more impartial medical organizations retained by the Chief Administrative Officer. If the list of doctors provided by the impartial medical organization is not agreed to by the certified representatives and the County, the certified representatives must strike 1 name from the list and the County must strike 1 name from the list by alternating strikes. The Chief Administrative Officer must appoint a member from the remaining 3 names on the list.
(2) The Chief Administrative Officer must appoint members who are licensed to practice medicine and certified in a medical specialty under standards established by the American Board of Medical Specialties (or a successor organization). At least 1 member must be either:
(A) certified by the American Board of Preventive Medicine (or a successor organization) as a specialist in occupational medicine; or
(B) certified in a different medical specialty and have at least 10 years of experience practicing occupational medicine.
(3) (A) The Chief Administrative Officer must appoint members under subsection (c)(1) for staggered 3-year terms. To implement the staggered terms, the Chief Administrative Officer must appoint the first member to a 3-year term, the second member to a one-year term, and the third and fourth members to a 2-year term. After these initial appointments, the Chief Administrative Officer must appoint all members to 3-year terms, except for any member appointed under subsection (c)(6) to fill a vacancy.
(B) After the Chief Administrative Officer appoints or reappoints a Panel member, the Chief Administrative Officer must promptly send each certified representative a copy of the document confirming the appointment.
(4) When a Panel member's term expires, the Panel member my be reappointed to a new 3-year term unless, at any time within 30 days to 60 days prior to the expiration of the term, a certified representative notifies the County and the other certified representatives or the County notifies the certified representatives that it objects to the reappointment of the Panel member. If there is no objection, the Panel member is eligible to serve an additional term or terms.
(5) If a Panel member declines to be reappointed to the Panel, the Chief Administrative Officer must appoint a new Panel member from a list of at least 5 medical doctors as provided for in subsection (c)(1).
(6) If a vacancy on the Panel is created by a Panel member's death, disability, resignation, non-performance of duty, or other cause, the Chief Administrative Officer must appoint a medical doctor to complete the Panel member's term from a list of at least 5 medical doctors as provided for in subsection (c)(1).
(7) The County must pay the impartial medical organization retained by the County and each Panel member reasonable compensation, as determined by the Chief Administrative Officer, for services rendered.
(d) Disability retirement procedures.
(1) An application for disability retirement may be filed with the Chief Administrative Officer by:
(A) a member;
(B) a certified representative on behalf of a represented member or
(C) the department, office, or agency head under subsection (k).
(2) The Disability Review Panel must consider an application for disability retirement benefits filed by a member or a certified representative. The Panel must determine if an applicant is eligible for non-service-connected disability or service-connected disability in accordance with subsections (e)(2) through (4) and subsection (f).
(3) Subject to the limitations in subsection (f)(4)(E), the Panel may consider any information or material submitted by the applicant, the certified representative or the County.
(4) Before the Panel discusses an application for a member other than a member of the Firefighter/Rescuer Bargaining Unit, the Panel must advise each party of the deadline date for submitting information to the Panel. The Panel must allow a reasonable amount of time for the parties to submit additional information, and may extend the deadline at the request of either party for good cause shown.
(5) Except for information from a member of the Firefighter/Rescuer Bargaining Unit, the Panel must not accept or consider information from a member if the information is received after the established deadline date unless the information is related to:
(A) the applicant’s reinjury that occurred or was diagnosed after the deadline date; or
(B) a change in the applicant’s medical condition that occurred or was diagnosed after the deadline date.
(6) The Panel must review and consider all evidence submitted to it no later than 60 days after the application is filed. A Panel must include either 2 or 3 members. At least 2 members must vote in favor of a decision to take any action under this Section.
(7) Within 30 calendar days after the Panel's final discussion at which the application was considered, the Panel must issue a written recommendation to the Chief Administrative Officer regarding whether the applicant meets the criteria for disability retirement benefits for non-service-connected disability in accordance with subsections (e)(2), (3) and (4) or service-connected disability in accordance with subsection (f).
(8) (A) Before making its recommendation, the Panel must:
(i) direct the applicant to undergo an independent medical examination (including all relevant medical tests) by a medical doctor who is not a member of the Disability Review Panel, unless the Panel finds that a medical examination is unnecessary because of the nature and severity of the injury or illness; and
(ii) if required for the Panel to make a recommendation as to residual functional capacity or substantial gainful capacity, request an independent vocational assessment.
(B) The County must pay the cost of the examination and assessment. The results of the examination, including findings, conclusions, medical opinions and diagnoses, must be given to the applicant or the applicant’s representative immediately after the County or the Panel receives it.
(C) The Panel must issue its written recommendation within 30 days after the Panel receives the later of:
(i) the full report from the medical doctor who conducted the examination; or
(ii) the full report of the results of the independent vocational assessment.
(9) Within 20 calendar days following receipt of the Panel's written recommendation, the Chief Administrative Officer or designee must issue a final decision regarding whether the applicant meets the criteria for disability retirement benefits for non-service-connected disability in accordance with subsection (e) or service-connected disability in accordance with subsection (f).
(10) A disability retirement is effective on the date a member exhausts all accrued sick leave and accrued compensatory leave in excess of 80 hours, if any, or on the date the application is approved by the Chief Administrative Officer, whichever comes first.
(11) For a Group F or Group G member, the amount of any lump sum retroactive disability retirement benefit must be reduced by the total amount of any temporary total disability, temporary partial disability, or permanent partial disability payments that the County paid to the employee under the Workers’ Compensation laws after the disability retirement took effect.
(e) Non-service-connected disability retirement. A member may be retired on a non-service-connected disability retirement if the member:
(1) has 5 years of credited service;
(2) is mentally or physically incapacitated for the further performance of duty as the result of an illness or injury incurred after enrollment as a member, the incapacity is not due to the member's willful negligence, and the incapacity is likely to be permanent. In extenuating circumstances, the Chief Administrative Officer may waive the requirement that a member's incapacity is likely to be permanent and may approve a temporary disability retirement for one or more one-year periods until the incapacity is either removed or it becomes apparent that it is likely to be permanent;
(3) is not eligible for service-connected disability retirement; and
(4) is unable to productively perform the duties of another available position for which qualified.
(f) Service-connected disability retirement.
(1) A member may be retired on a service-connected disability retirement if:
(A) the member is totally or partially incapacitated as the natural and proximate result of an accident occurring, or an occupational disease incurred or condition aggravated while in the actual performance of duty;
(B) the incapacity is not due to the member’s willful negligence;
(C) the incapacity is likely to be permanent;
(D) the member is unable to perform the duties of either:
(i) the occupational classification to which the member was assigned when the disability occurred; or
(ii) a position of comparable status in the same department for which the member is qualified; and
(E) the member has not committed an offense that would justify termination for misconduct.
(F) For an accidental injury that does not cause mental impairment, the member must:
(i) report the claimed accidental injury as soon as practicable, but no later than one year after the applicant knew or should have known that the injury is likely to be disabling; or
(ii) submit a claim for Workers’ Compensation benefits for the accidental injury that is not dismissed as untimely.
(G) The time periods for reporting in subparagraphs (i) and (ii) do not begin while the member is unable to report because of incapacitating injuries.
(H) For an accidental injury that occurs after July 1, 2009, the member must apply for disability benefits:
(i) within one year after separation from County service or before July 1, 2010, whichever is later; and
(ii) if the applicant is a member of Group F, within 5 years after the date of the accident causing the impairment or before July 1, 2014, whichever is later, unless the member is in a chronic incapacity duty assignment.
(2) A Group F member who otherwise satisfies the requirements of subsection (f)(1) must not be denied a disability retirement because the member is able to perform a chronic incapacity duty assignment.
(3) In extenuating circumstances, the Chief Administrative Officer may waive the requirement that a member's incapacity is likely to be permanent and may approve a temporary disability retirement for one or more one-year periods until the incapacity is either removed or it becomes apparent that it is likely to be permanent.
(4) A Group G member who has an occupational disease that is compensable under Section 9-503 of the Maryland Workers’ Compensation Act or who incurs esophageal, lymphatic, testicular, brain, lung, bladder, or kidney cancer, multiple myeloma, melanoma, or any blood borne pathogen, is entitled to receive service- connected disability benefits if:
(A) the employee became a member of Group G on or after July 1, 1999, and did not use, or get terminated for using tobacco products for any purpose either on-duty or off-duty while employed by the County as a Group G member; or
(B) the employee became a member of Group G before July 1, 1999 and:
(i) did not use tobacco products more than 3 times for any purpose while on-duty after June 30, 2000;
(ii) if a tobacco user, completed a tobacco-cessation program approved by the County; and
(iii) completed a cardiovascular fitness assessment and evaluation program established by the County (or by the County and the certified representative, for members of the Firefighter/Rescuer Bargaining Unit) and made a good faith effort to follow the health and fitness recommendations that resulted from the cardiovascular assessment.
(5) Alternative placement incentive.
(A) The Chief Administrative Officer may offer a 5-percent salary increase to an employee who:
(i) is not a member of the Police Bargaining Unit;
(ii) is eligible to receive a service-connected disability retirement; and
(iii) accepts an alternative position in the County government for which the employee is qualified.
(B) The employee’s salary in the alternative position must not exceed the maximum salary of the pay grade assigned to the position.
(C) A member of the Office, Professional and Technical Bargaining Unit or the Service, Labor and Trades Bargaining Unit who accepts an alternative placement incentive is not eligible to apply for a service connected disability retirement based on the disability for which the alternative placement was made.
(D) A Group G member who accepts an alternative placement incentive:
(i) must remain a Group G member for the remainder of the member’s County employment; and
(ii) is not eligible for a service-connected disability retirement based on the medical condition that existed at the time the alternative placement was made.
(E) If a member applies for service-connected disability retirement instead of accepting an alternative placement incentive, the member’s failure to accept the incentive must not:
(i) be included in the information considered by the Disability Review Panel, Chief Administrative Officer, or Disability Arbitration Board;
(ii) be considered at any time by the Disability Review Panel, Chief Administrative Officer, or Disability Arbitration Board; or
(iii) effect the member’s eligibility for service-connected disability retirement or the amount of the service-connected disability pension benefit.
(g) Medical reexamination of disability retiree. The Chief Administrative Officer must require a member receiving disability pension payments to undergo either a yearly physical examination or to submit a medical doctor’s certificate verifying continuation of the disability during the 5 years after retirement, and once in every 3 years thereafter, until age 55 for a member of group B, E, F, G, or J or age 60 for a member of group A or H, unless the Chief Administrative Officer finds that a physical examination is unnecessary because of the nature and severity of the injury or illness. The Chief Administrative Officer must review the findings of the physical examination and take appropriate action, which may include submitting the results of the evaluation to the Disability Review Panel for a redetermination whether the individual qualifies for disability benefits in accordance with subsection (d). If a member does not submit to the examination, the Chief Administrative Officer may reduce or discontinue any disability pension payments which the member receives. The Disability Review Panel may require the member to submit to an additional independent medical examination. A member may appeal a decision to reduce or discontinue disability pension payments to the appropriate Disability Arbitration Board.
(h) Amount of pension at non-service-connected disability retirement. A member who retires on non-service-connected disability retirement must receive an annual pension equal to the greater of:
(1) the amount calculated under Section 33-42(b)(1); or
(2) 33 percent of final earnings.
(i) Amount of pension at service-connected disability retirement.
(1) Total incapacity. The County must pay a member who retires on service-connected disability retirement with total incapacity an annual pension calculated under Section 33-42(b)(1), except that:
(A) the County must substitute final earnings for average final earnings; and
(B) the pension must be at least 70% of the member’s final earnings.
(2) If the benefit calculation under Section 33-42(b)(1) is greater than any other benefit under this subsection, the County must pay a Group G member who retires on a service-connected disability retirement between June 26, 2002, and June 30, 2007, a pension based on the member’s average final earnings if that member’s average final earnings result in a greater benefit than final earnings.
(3) The Disability Review Panel must recommend a finding of total incapacity if the member’s service-connected disability is severe enough to meet the Social Security Administration’s requirements for disability, meaning that the member is unable to engage in any substantial gainful activity because of a medically determinable physical or mental impairment that can be expected to end in death or has lasted, or can be expected to last, for a continuous period of at least 12 months. The member does not have to qualify for Social Security disability benefits to be eligible for benefits under this subsection.
(A) The Panel must base its determination of whether an individual is able to engage in any substantial gainful activity on an assessment from an independent vocational expert that considers the member’s age, education, work experience, transferable skills, and residual functional capacity.
(B) The Panel must determine the member’s residual functional capacity and provide this information to the independent vocational expert.
(C) A Panel determination that the member’s service-connected disability is severe enough to be considered a disability by the Social Security Administration is not a recommendation that the member is entitled to, or should be granted, a disability benefit by the Social Security Administration.
(D) If a member has already been granted disability benefits by the Social Security Administration when the member applies for a service-connected disability pension, the County must pay the member a pension of at least 70% if the Disability Review Panel finds that the award of disability benefits from the Social Security Administration was based primarily on the same medically determinable physical or mental impairment on which the Disability Review Panel awards the member a service-connected disability benefit.
(4) The County must pay a member who retires with partial incapacity on a service-connected disability retirement an annual pension calculated under Section 33-42(b)(1), but the benefit must be at least 52½% of final earnings if the Chief Administrative Officer finds, based on a recommendation from the Disability Review Panel, that:
(A) the member meets the standards to receive a service-connected disability benefit under subsection (f); and
(B) the member is not eligible to receive a benefit for total incapacity under subsection (i)(3).
(5) (A) The County must increase the partial incapacity service-connected disability pension benefit of a member calculated under Section 33-42(b)(1), from a benefit of at least 52½% to a benefit of at least 70%, if:
(i) the Social Security Administration awards disability benefits to the member;
(ii) the member submits all relevant information about the award of disability benefits from the Social Security Administration to the Disability Review Panel within 60 days after the member receives the award;
(iii) the Disability Review Panel finds that the award of disability benefits from the Social Security Administration was based primarily on the same medically determinable physical or mental impairment on which the Disability Review Panel originally awarded the member a service-connected disability benefit; and
(iv) the member applies for disability benefits with the Social Security Administration within 90 days after the Chief Administrative Officer notified the member that the service-connected disability pension benefit would be calculated as a partial incapacity.
(B) If a member qualifies for an increased pension benefit under subparagraph (A), the County must increase the member’s service-connected pension retroactively to the date when the pension began.
(6) Under this subsection, “final earnings” for a Group F or G member who is participating in a job-sharing program under a collective bargaining agreement between the County and a certified representative means the regular earnings that the member would have received if the member had been employed on a full-time basis on the last date of active service.
(7) The County must pay a Group F member who retires on a service-connected disability retirement on or after June 26, 2002, an annual pension calculated under subsection (i)(1) or subsection (i)(4). However, if a greater benefit results from the calculation under Section 33-42(b)(1), the County must pay a Group F member a pension based on the member’s average final earnings if that member’s average final earnings result in a greater benefit than final earnings.
(j) Adjustment or cessation of disability pension payments.
(1) If a member receiving service-connected disability pension payments reaches the first day of the month after the member’s normal retirement date, the amount of pension then payable must not be less than the amount that would have been payable under Section 33-45(c) if the member had terminated service when the disability pension began and had not elected a return of member contributions with credited interest.
(2) (A) The Chief Administrative Officer may reduce the amount of the disability pension payments of a member retired with total incapacity who:
(i) has not reached the normal retirement date; and
(ii) is engaged in, or is able to engage in, an occupation that pays more than the difference between the disability pension payments and the current maximum earnings of the occupational classification from which the member was disabled.
(B) If a member other than a Group F member meets the criteria in subparagraph (A), the Chief Administrative Officer may reduce the member’s disability pension payments until the disability pension payments plus the amount that the employee earned or is able to earn equals the maximum earnings of the occupational class from which the member was disabled.
(C) If a Group F member receives a non-service connected disability pension and meets the criteria in subparagraph (A), the Chief Administrative Officer may reduce the member’s disability pension payments until the disability pension payments plus the amount the employee earned or is able to earn equals 120 percent of the maximum earnings of the occupational class from which the employee was disabled.
(D) If a member receives a disability retirement pension, except for a Social Security disability benefit, from another employer for the same impairment, the Chief Administrative Officer must reduce the member’s disability pension payment by the amount of the other disability retirement pension.
(3) If the earnings capacity of a disability retiree with a total incapacity changes, the Chief Administrative Officer may change the amount of the disability retirement pension. In this subsection, “disability pension” is the amount of pension payable without election of a pension payment option.
(A) For a disability retiree other than a group F member, the Chief Administrative Officer must ensure that the amount of the revised pension does not exceed:
(i) the original disability retirement pension plus cost-of-living increases; or
(ii) an amount that, when added to the amount the member earns or is able to earn, equals the maximum earnings of the occupational classification from which the member was disabled.
(B) For a Group F member who receives a non-service connected disability pension, the Chief Administrative Officer must ensure that the amount of the revised pension must not exceed:
(i) the original disability retirement pension plus cost-of-living increases; or
(ii) an amount that, when added to the amount that the member earns or is able to earn, equals 120 percent of the maximum earnings of the occupational classification from which the member was disabled.
(4) A member who receives a disability retirement pension for a total incapacity must submit to the Chief Administrative Officer by May 30 of each year a copy of that portion of the member’s federal income tax return which shows the member’s income. If a member who receives disability pension payments does not supply the Chief Administrative Officer any information the Chief Administrative Officer needs to decide the amount of retirement pay legally due, the Chief Administrative Officer must suspend the member's pension payments until the member submits the needed information.
(5) If a member receiving disability pension payments returns to the service of the County or is appointed or elected to any office, the salary or compensation of which is paid wholly or in part by the County, pension payments will cease, and the individual will again become a member of the retirement system and resume member contributions.
(6) For any employee, except as provided below, who enrolled or re-enrolled in the retirement system on or after July 1, 1978, the member's disability retirement benefit for any month must be integrated with the primary disability benefits received from Social Security, and the total benefits from both sources must not exceed 100% of the member’s average final earnings. This limit does not apply to cost-of-living adjustments made under Section 33-44(c). The benefit for a member who received a disability retirement benefit on or after January 1, 2000, must not be integrated with the primary disability benefits received from Social Security, and the total benefits from both sources may exceed 100% of the member’s average final earning.
(7) The Chief Administrative Officer must not reduce the service-connected disability pension payments of a Group F or G member by earned income received from any source except:
(A) County Government employment; or
(B) for a Group F member, employment as a sworn law enforcement officer with full powers of arrest and authority to carry a firearm in connection with that employment.
(k) Administrative disability retirement. Whenever any member becomes disabled or incapacitated and is demonstrably not capable of performing the duties and responsibilities of the position to which assigned at an acceptable level of competence for medical reasons, the member must be notified by the head of the department, office or agency that in consideration of the medical condition, a disability retirement application should be initiated. If the member fails or refuses to make an application for disability retirement, the department, office or agency head may initiate a disability retirement application on behalf of the member. All pertinent information, including the member's attendance record, job performance record and medical record, must be transmitted to the Disability Review Panel.
(l) Appeal procedures.
(1) An applicant who is a member of the Police Bargaining Unit or the certified representative of the Police Bargaining Unit may appeal a decision of the Chief Administrative Officer that affects the member’s right to disability benefits to the Police Disability Arbitration Board. An applicant who is not a member of the Police Bargaining Unit, or the certified representative on behalf of the applicant, may appeal the written decision of the Chief Administrative Officer to one of 3 Disability Arbitration Boards. An applicant must file an appeal within 20 calendar days of the date on which the applicant receives the Chief Administrative Officer's decision.
(2) The Police Disability Arbitration Board must consider appeals filed by members of the Police Bargaining Unit. The 3 Disability Arbitration Boards must consider all other appeals on a rotating basis in the order in which the County receives the appeals.
(3) After an applicant files an appeal, the appropriate Disability Arbitration Board or Police Disability Arbitration Board with whom the appeal is filed must convene within a reasonable time and consider the appeal.
(4) The appeal and judicial review proceedings are governed by the Maryland Uniform Arbitration Act, except that a Board decision must not be vacated on the ground that the applicant who filed the appeal is not a bargaining unit member and did not agree to arbitrate the appeal.
(5) The Chairpersons of the Disability Arbitration Boards and Police Disability Arbitration Board must, for the appeals before them:
(A) decide all issues on prehearing procedures, including any issue related to discovery; and
(B) rule on all issues of law that arise before the hearing, unless ruling on the issue would decide the appeal.
(6) The Disability Arbitration Boards and Police Disability Arbitration Board must render decisions quickly. The Disability Arbitration Boards and Police Disability Arbitration Board should issue written decisions on appeals within 30 calendar days after the hearing or after receiving any post-hearing briefs.
(m) Disability Arbitration Boards and Police Disability Arbitration Board.
(1) (A) The County Executive must appoint a different neutral arbitrator to be the Chairperson of each Disability Arbitration Board. The County Executive must select the neutral arbitrators from a list of 6 arbitrators agreed upon by the County and the certified representatives that represent all bargaining units except for the Police Bargaining Unit. To the extent possible, the 6 neutral arbitrators on the list should be experienced in law and occupational medicine. The appointment of the Chairperson of each Disability Arbitration Board must be confirmed by the County Council. The County must give each certified representative a copy of the Council resolution confirming the appointment or reappointment of each Chairperson promptly after the Council’s action.
(B) The County Executive must appoint a neutral arbitrator to be Chairperson of the Police Disability Arbitration Board. The neutral arbitrator must be selected by the County and the certified representative of the Police Bargaining Unit either by agreement or through the processes of the American Arbitration Association. To the extent possible, the neutral arbitrator should be experienced in law and occupational medicine. The appointment of the Chairperson of the Police Disability Arbitration Board must be confirmed by the County Council
(2) Each neutral arbitrator appointed by the County Executive under paragraph (1) must serve for a term of 3 years. At the expiration of the arbitrator's term, the arbitrator is eligible for reappointment to a new 3-year term unless, at any time within 30 to 60 days prior to the expiration of the 3-year term, either a certified representative gives written notice to the County or the County gives written notice to the certified representatives that it objects to the neutral arbitrator serving another term. If no objection is filed, the arbitrator is eligible for appointment to an additional term.
(3) If the neutral arbitrator declines to be reappointed, dies, resigns, or for other cause is unable or ineligible to serve on one of the Disability Arbitration Boards or the Police Disability Arbitration Board, a new arbitrator must be appointed by the County Executive under paragraph (1).
(4) The County must pay all reasonable fees and expenses of the arbitrators, as determined by the Chief Administrative Officer, except that a certified representative representing an applicant who is a member of the Office, Professional or Technical or Service, Labor and Trades Bargaining Unit must pay any fee resulting from the cancellation of a scheduled hearing if the certified representative:
(A) causes a hearing to be canceled and the application remanded to the Disability Review Panel; or
(B) causes a hearing to be canceled and rescheduled on a later date.
(5) The applicant, or the certified representative on behalf of the applicant, must designate an individual to serve as a member of the Disability Arbitration Board that will consider and decide the applicant's appeal. The applicant must designate an individual to serve as a member of the Police Disability Arbitration Board. The Chief Administrative Officer must designate an individual to serve on the Disability Arbitration Board or Police Disability Arbitration Board that will consider and decide the applicant's appeal. The applicant, or the certified representative on behalf of the applicant, and the County, respectively, may designate Board members on a case-by-case basis according to each party's chosen procedure. There must be no restriction on who may serve as the designee of the applicant or the County, except that no member of the Board that will consider and decide an appeal may be involved in, or be a witness to, any matter that is before that Board.
(6) Each party, including participating agencies, must be responsible for the fees and expenses of its respective members. Each party, including participating agencies, must also be responsible for its own witness fees and expenses.
(n) Guaranteed retirement income plan. Subsections (a)-(m) do not apply to a participant in the guaranteed retirement income plan.
(1) Non-public safety employees. If a non-public safety employee participant incurs a disability before termination from County employment which makes the participant unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months, the disabled participant must remain a participant in the guaranteed retirement income plan under the following rules:
(A) All amounts credited to the participant’s guaranteed retirement income plan account, including County contributions, are 100% vested regardless of the participant’s credited service.
(B) The participant must participate in the guaranteed retirement income plan under this Section until the participant dies, reaches his or her normal retirement date, or recovers from the disability.
(C) In determining the credit amount of County contributions under Section 33-40, the participant’s regular earnings means the regular earnings the participant would have received for the year if the participant were paid for the full year at the rate of compensation paid in the pay period immediately before the participant became disabled.
(D) The participant must not receive a distribution during any period in which the participant receives a County contribution credit.
(E) The participant must not make member contributions under Section 33-39 during the disability participation.
(2) Public Safety Employees. If a public safety employee participant incurs a disability before retirement or other separation from service which, in the opinion of a physician selected or approved by the Chief Administrative Officer, renders the participant unable to perform duties satisfactorily for the employment the participant held with the County before the disability, the participant’s employment and participation in the guaranteed retirement income plan must be terminated and deemed a disability retirement under the following rules:
(A) All amounts credited to the participant’s guaranteed retirement income plan account, including County contributions, are 100% vested regardless of the participant’s years of credited service.
(B) The Chief Administrative Officer must determine the date on which a disability retirement is effective. After a participant submits a properly completed distribution form, the Chief Administrative Officer must distribute the value of the former participant’s account balance to the former participant under this Section. (1995 L.M.C., ch. 3, § 1; 1995 L.M.C., ch. 31, § 1; 1999 L.M.C., ch. 26, § 1; 2001 L.M.C., ch. 21, § 1; 2003 L.M.C., ch. 30, § 1; 2003 L.M.C., ch. 31, § 1; 2006 L.M.C., ch. 33, § 1; 2007 L.M.C., ch. 3, § 1; 2008 L.M.C., ch. 1, § 1; 2008 L.M.C., ch. 22, § 1; 2008 L.M.C., ch. 24, § 1; 2009 L.M.C., ch. 11, § 1; 2009 L.M.C., ch. 23, § 1; 2010 L.M.C., ch. 32, § 1; 2011 L.M.C., ch. 13, § 1; 2014 L.M.C., ch. 17, § 1; 2016 L.M.C., ch. 42, § 1.)
Editor’s note—2016 L.M.C., ch. 42, § 2, states, in part: ... Any active group E member who is not a County correctional officer or a sworn deputy sheriff must become a group J member on the date this law takes effect.
2009 L.M.C., ch. 11, § 2, states: Sec. 2. Transition. A member of the Disability Review panel when this Act takes effect [August 19, 2009] may continue to serve until the expiration of the Panel member’s term. All appointments to the Panel made after this Act takes effect [August 19, 2009], including the reappointment of a qualified existing Panel member, must be made pursuant to this Act.
Notes
| [Note] | *Editor’s note—1999 L.M.C., ch. 26, § 1, deleted § 33-43, Disability Retirement, and renumbered § 33- 43A, Disability Retirement, to § 33-43. The previous § 33-43, Disability Retirement, was derived from Ord. No. 5-152; Ord. No. 6-195, § 1; 1971 L.M.C., ch. 39, § 4; 1972 L.M.C., ch. 19, § 8; 1974 L.M.C., ch. 31, §§ 10, 11; 1974 L.M.C., ch. 59, § 4; 1978 L.M.C., ch. 44, § 1; 1985 L.M.C., ch. 49, § 1; 1986 L.M.C., ch. 29, § 1; 1986 L.M.C., ch. 56, § 1; 1987 L.M.C., ch. 27, § 7; 1989 L.M.C., ch. 45, § 1; 1994 L.M.C., ch. 13, § 1; 1995 L.M.C., ch. 1, § 1; 1995 L.M.C., ch. 3, § 1; 1998 L.M.C., ch. 31 § 1; 2001 L.M.C., ch. 28, §§ 6, 15 and 16, the amendments to which have the same effective date as 1998 L.M.C., ch. 31, § 1. The following annotations refer to § 33-43 prior to 1999 L.M.C., ch. 26: The Court found in Frederick W. Ahalt v. Montgomery County, Maryland, 113 Md.App. 14, 686 A.2d 683 (1996), that in order for a claimant to collect disability benefits for a “condition aggravated” under subsection (e)(1), the claimant must prove that the aggravation of the condition in the course of duty was the sole, proximate cause of the disability. The Court of Special Appeals found in Sweeney v. Montgomery County, 107 Md.App. 187, 667 A.2d 922 (1995), that the test to determine whether an employee is totally incapacitated for duty under §33-43(e) is whether the employee could perform any of the important functions of the job held at the time the disability occurred. An employee is partially incapacitated for duty if he or she can perform some but not all of the important functions of the job held at the time the disability occurred. The Court of Appeals held in Montgomery County v. Buckman, 333 Md. 516, 636 A.2d 448 (1994), that the Montgomery County Council, by use of the words “partial” in §33-43(h)(2) and “partially” in §33-43(e)(1), intended a lesser amount of retirement benefits to a partially disabled employee. The Council has unambiguously created a type of disability retirement for an employee, who because of a workplace accident, suffers from a permanent partial disability which prevents that employee from performing enough of the duties of the job held at the time the disabling accident occurred but who is not totally incapacitated from employment. The Court refused to rule that where an employee, due to a job-related injury, is “unable to perform enough of the duties of that job to remain in that position,” he or she is entitled to the service-connected retirement benefits provided for an employee who is totally incapacitated for duty. Section 33-43 is cited in Fultz v. Shaffer, 111 Md.App. 278, 681 A.2d 568 (1996) and Polomski v. Mayor & City Council of Baltimore, 344 Md. 70, 684 A.2d 1338 (1996); Section 33-43 is cited and quoted in part in Fikar v. Montgomery County, 333 Md. 430, 635 A.2d 977 (1994); Section 33-43(e) is interpreted and Sections 33-43(f) and (i) are quoted in part in Main v. Montgomery County, 961 F.Supp. 125 (D.Md. 1997). |