Section 742-3-05 - Disability benefits procedure(A) For purposes of divisions (C)(2), (C)(3), (C)(4), and (C)(5) of former section 742.37 of the Revised Code and section 742.38 of the Revised Code and this rule, the following terms shall have the meanings set forth herein: (1) "Board," shall mean the board of trustees of the Ohio police and fire pension fund ("OP&F").(2) "Applicant" shall mean a member of OP&F who has filed any type of application for disability benefits or any person who has filed such application on behalf of an incapacitated member in accordance with division (B) of section 742.38 of the Revised Code and rule 742-3-12 of the Administrative Code and who does not have benefits vested under the deferred retirement option plan under section 742.444 of the Revised Code.(3) "Disability benefit recipient" shall have the meaning described in division (A) of section 742.40 of the Revised Code.(4) "On-duty illness or injury" means an illness or injury that occurred during or resulted from the performance of official duties as a police officer or firefighter.(5) "Off-duty illness or injury" means an illness or injury that did not occur during or result from the performance of official duties as a police officer or firefighter. Unless the illness or injury meets the presumption criteria outlined in section 742.38 of the Revised Code or competent and credible evidence is submitted to OP&F, a disability condition is presumed to be the result of an off-duty illness or injury.(6) "Permanent disability" shall have the same meaning set forth in division (D) of section 742.38 of Revised Code.(7) "Total disability" shall have the meaning set forth in division (D) of section 742.38 of the Revised Code.(8) "Partial disability" shall mean a condition of disability with respect to which the board finds the applicant is prevented from performing the member's official police or fire duties and member's earnings capacity is impaired.(9) "Guides" shall mean the American medical association's "Guides to the Evaluation of Permanent Impairment, fifth and sixth editions."(10) "Occupational characteristics" shall mean the U.S. department of labor's occupational characteristics for police officer (government service) and fire fighter (any industry) positions as the standards for determining the presence or absence of disability.(11) "Medical Advisor," as referred to in this rule, shall mean the expert physician appointed by OP&F's board of trustees who advises the board on appeals of decisions relating to disability applications.(12) "Vocational Expert," as referred to in this rule, shall mean the expert in vocational evaluations appointed by OP&F's board of trustees who advises the board on appeals of decisions relating to disability applications.(13) "Disability evaluation panel (DEP)" shall mean the medical consultants retained by the board to make written recommendations to the board's disability committee on pending disability applications.(14) "Disability committee medical advisor," as referred to in this rule, shall mean the expert physician appointed by the board of trustees to advise the disability committee during its deliberations of initial disability applications and post-disability grant reconsiderations, who shall be a different physician than the medical advisor.(15) "Disability committee vocational expert," as referred to in this rule, shall mean the expert in vocational evaluations appointed by the board of trustees to advise the disability committee during its deliberations of initial disability applications and post-disability grant reconsiderations, who shall be a different evaluator than the vocational expert.(16) "Forms" shall mean the forms created, approved, and/or provided by OP&F for the administration of benefits found on the OP&F website at http://www.op-f.org.(B) Impairment and disability evaluation criteria:(1) A competent and disinterested physician and vocational evaluator may be assigned to conduct independent medical examinations for purposes of determining a member's disability, as provided by law, medical impairment and eligibility for disability benefits.(2) In evaluating a member's disability, as provided by law, medical impairment and eligibility for disability benefits, the DEP, the disability committee and the board will use the official duties provided by the employer. In the event such information is not provided by the employer or does not clearly define the applicable job duties, the DEP, disability committee and the board shall use the criteria contained in the "guides", the occupational characteristics adopted by the board, and the criteria set forth in division (D) of section 742.38 of the Revised Code.(3) In evaluating a member's eligibility for disability benefits, the physicians, vocational evaluators, the DEP, the disability committee and the board shall consider the member's potential for retraining and reemployment and the eligibility criteria set forth in division (D) of section 742.38 of the Revised Code so that the person's ability to be retrained and reemployed shall include any positions, not just police or fire positions.(4) The consideration of a member's application shall be limited to the disabling condition(s) listed in the application if supporting medical documentation is provided to OP&F or disclosed by the examination of the physician(s) selected by OP&F. The disability committee and the board shall consider and base its findings and recommendations on all competent evidence made available to it, including medical testimony, opinions, statements, and medical reports submitted by the member's employer under section 742.38 of the Revised Code and rule 742-1-02 of the Administrative Code.(5) The DEP shall submit to the disability committee a written recommendation on each application evaluated followed by a report incorporating a summary of findings, along with their medical opinion as to whether or not the disabling condition results from an on-duty illness or injury and whether or not the condition is eligible for waiver.(6) In reviewing applications for disability benefits, the disability committee shall rely upon the recommendations of the disability committee medical advisor and the disability committee vocational expert, who have given due consideration of medical and other evidence presented to OP&F.(C) Initial application. (1) Applications for disability benefits shall be made on a form approved by OP&F and must be properly completed in order to be processed. The member shall provide necessary substantiating documentation, including, but not limited to, pertinent hospital records, statements from attending physicians, departmental injury reports, the results of any special diagnostic tests, and notice of allowed workers' compensation claims. The documentation submitted by the member shall be objective, relevant, and recent (i.e., dated within two years from the date of application for disability), as determined by OP&F staff in consultation with the disability committee medical advisor. Any documentation to the contrary or that is duplicative may not be considered as part of the member's application. Documentation that is not considered shall be returned to the member with a written notice listing the documentation being returned and the reason for the return.(2) OP&F shall notify the member's employer that an application has been filed and will send a courtesy copy of such notice to the member within fourteen days after receiving an application for disability benefits from a member or a person acting on behalf of a member, as required by the terms of division (B) of section 742.38 of the Revised Code. The notice shall state only the position or rank, as required by the terms of division (B) of section 742.38 of the Revised Code.(3) For those notices sent under paragraph (C)(2) of this rule, the member's employer shall forward to OP&F a statement certifying the job description for the position or rank and any other information required by the board to process the application and such report or statement shall be filed with the board not later than twenty-eight days after the employer's receipt of the notice referred to in paragraph (C)(2) of this rule or filing an application on behalf of a member, whichever is the first to occur.(4) The member's employer shall forward the physician's report of the member's physical examination taken on entry into the police or fire department, as more fully provided in division (A)(1) of section 742.38 of the Revised Code. If the employer fails to forward such report to OP&F on or before the date that is sixty days after the member becomes an OP&F member, division (A)(2) of section 742.38 of the Revised Code requires OP&F to assess against the employer a penalty determined under section 742.353 of the Revised Code and rule 742-8-08 of the Administrative Code. Even though a member may not have a disabling condition that is presumed, by law, to have been incurred in the member's performance of his/her official duties, that does not foreclose the member from being awarded a service-incurred disability grant.(5) Once the application is complete, the member covered by the pending disability benefit application may be scheduled for an independent medical examination(s) and vocational evaluation, unless it is medically inadvisable to do so.(a) Payment of any fees connected with the acquisition of records or the preparation of reports of the attending physicians shall be the responsibility of the member.(b) Payment of any fees connected with the preparation of the report of the independent medical examination(s) and vocational evaluation shall be the responsibility of OP&F.(6) The DEP shall review the application and all medical reports and records, and then make a written recommendation to the disability committee based upon the criteria set forth in paragraph (B) of this rule. The board, based on the written recommendation of the disability committee, will then consider the application and make an initial determination of disability. The board may: (a) Grant a disability benefit;(b) Deny disability benefits; or(c) Postpone determination, pending an additional examination, or the submission of additional fact. The member covered by a pending disability application may withdraw the application through a written authorization filed with OP&F at any time prior to the board's award of the initial determination of disability. To the extent that a pending disability application is withdrawn by a member, the withdrawn application shall not be presented to the disability committee or the board, depending on when it is received by OP&F.
(7) Copies of the reports of the independent medical examiners and vocational evaluators will be sent to the member and the member's agent upon their request, unless the release of such reports is otherwise prohibited by law. The DEP recommendations will not, however, be released until the board has made an initial determination of disability. For purposes of the initial determination of disability, OP&F will not consider any documents from a member or a member's agent that seek to rebut or comment on the reports of the independent medical examiners and vocational evaluators.(8) Any disability benefit award determined by the board shall be effective as of the date that the board made its initial determination of disability on such pending disability application.(9) The member covered by the pending disability application shall be notified of the board's initial determination of disability within thirty days after the board's final action and such notice shall be sent by certified mail, return receipt requested. The member covered by the pending disability application shall be advised of his or her right to:(a) Accept the benefit grant;(b) Waive the benefits and continue working; or(c) Appeal the initial determination of the board.(D) Acceptance or waiver of benefits. Not later than ninety days after receipt of the notice of the board provided for in paragraph (C), (E), or (F) of this rule, the disability benefit recipient shall accept or waive the board's determination of disability on the disability benefit election form provided by OP&F.
For purposes of making the determination whether the disability applicant has accepted or waived the board's determination of disability, OP&F may conclusively rely upon its books and records.
(1) If no such election is filed with OP&F within the ninety-day time period provided in paragraph (D) of this rule, the award shall be rescinded.(2) Subject to the requirement set forth in paragraph (D) of this rule, if a member accepts the award and then fails to establish an effective date of retirement by terminating police or fire employment within ninety days of receipt of notice of the board's determination of disability, as provided under paragraph (C)(9) or (E)(7) of this rule, the disability benefit shall be rescinded.(3) A member whose benefits are rescinded pursuant to paragraph (D)(1) or (D)(2) of this rule shall not be foreclosed from later filing another disability benefit application. Any subsequent applications shall be treated as a new application for disability benefits, except to the extent that such member does not meet the eligibility requirements set forth in division (D) of section 742.38 of the Revised Code.(E) Appeal of initial determination.(1) Upon a member's appeal of the board's initial determination of disability, the board shall be advised by its medical advisor and vocational expert. The board shall not be under any obligation to adopt the recommendation of its medical advisor or vocational expert if there is some evidence to support a contrary finding.(2) A member who wishes to appeal the board's initial determination of disability shall file the notice of disability appeal form provided by OP&F within ninety days of receipt of the board's initial determination of disability referred to in paragraph (C)(6) of this rule. The notice of appeal must contain the member's name, social security number and a brief description of the decision upon which the appeal is based.(3) Within thirty days of filing of the notice of appeal, the member shall file any new evidence not previously considered by the board on the initial disability application. Such evidence shall be objective, relevant, and recent (i.e., dated within two years from the date of application for disability), as determined by OP&F staff in consultation with the disability committee medical advisor. Any documentation to the contrary or that is duplicative may not be considered as part of the member's appeal. Documentation that is not considered shall be returned to the member with a written notice listing the documentation being returned and the reason for the return.(4) Failure to submit supporting materials or to request an extension of time within which to do so will be sufficient cause for the appeal to be dismissed. Upon application before the expiration of the original thirty day period referred to in this paragraph, the appellant may, for good cause shown, be granted an extension of thirty days within which to file supporting materials. The appellant may be granted an additional extension based on a recommendation from the disability committee medical advisor that there is solid evidence of a medical reason to grant the extension for a period of time recommended by the disability committee medical advisor. In no event shall the hearing be postponed more than three times and in no event shall the extensions, in the aggregate, exceed six months. A request for a postponement received by OP&F within ten days of the date of the hearing will only be granted in exceptional circumstances, as determined by OP&F's executive director in his or her sole discretion.(5) Depending on the basis for the appeal and the new evidence submitted by the member, the member may be requested to undergo a new medical examination and/or vocational evaluation by an independent examining physician and/or vocational evaluator. OP&F may also provide the new evidence to the original independent examining physician and/or vocational evaluator and request that they review the new evidence and provide an addendum to their original reports. The payment of any fees connected with the preparation of the report of the independent medical examination(s) and vocational evaluation shall be the responsibility of OP&F. The new evidence submitted by the member and any additional medical and/or vocational reports, including addendum reports, shall be forwarded to the board's medical advisor and vocational expert for review and consideration. The medical advisor and vocational expert will then provide recommendations to the board regarding the member's disability application.(6) Upon receipt of the recommendations from the medical advisor and vocational expert, the board shall schedule a hearing on the appeal and shall give the appellant reasonable notice of the date, time and place thereof in writing. Such hearings shall be scheduled within sixty days of the receipt of the reports of the medical advisor and vocational expert. Any hearing may be postponed or continued by the board, either upon application of the appellant or on its own motion. The appellant shall be given the opportunity to be present, with counsel or other representation if he or she chooses, at the hearing. A recording of the hearing will be made to provide the board and the medical advisor with a record for further review. Such recording of the hearing shall be available to the disability applicant and to those individuals who are authorized by the disability applicant to receive such information on the authorization to release medical records form provided by OP&F.(7) Following the hearing on appeal, the board may choose to: (a) Affirm the original determination of disability;(b) Modify the original determination of disability;(c) Deny the disability application; or(d) Postpone a decision pending additional examinations or documentation. The board's decision on appeal shall be the final determination of the initial disability application, subject to the foregoing time limitations on extensions that can be granted.
(8) The applicant shall be advised of the board's action within thirty days after the board's final determination of disability and such notice shall be sent by certified mail, return receipt requested. The member covered by the disability appeal shall be advised of the member's right to:(a) Accept the benefit granted;(b) Waive the benefit and continue working; or(c) File a mandamus action.(F) Post-disability grant reconsideration. (1) A member who is receiving a less than maximum partial disability and who believes that deterioration of the disabling physical or mental condition awarded by the board has increased the amount of disability, may apply for a reconsideration. Such application shall be on the disability reconsideration application form prepared by OP&F, which shall be dealt with on not less favorable terms than the process used by the disability committee for recommendation to the board on initial determinations of disability. The member shall supply substantiating documentation including: (a) Recent medical reports and physician's statements;(b) A wage statement including taxable earnings for the last five years of retirement, primary employers and occupations, and rehabilitation and training programs pursued.(2) The disability committee shall review such evidence and shall make a written recommendation to the board. The board shall, based on the written recommendation of the disability committee, review the evidence submitted, and may decide to:(a) Deny the application for reconsideration;(b) Approve the application and modify the disability benefit effective the first of the month following the decision; or,(c) Postpone a determination of the application pending further physical examination, or further documentation. The board's decision shall be the final determination of an application for reconsideration.
(3) The member shall be advised of the board's final determination within thirty days after the board's final action and such notice shall be sent by certified mail, return receipt requested. The letter shall include notice of the member's right to request a new reconsideration, but the board will consider only one application for reconsideration from a member during any twelve-month period.(G) Notwithstanding anything herein to the contrary, once a member has deposited, negotiated, or cashed a disability benefit check from OP&F, or failed to withdraw his/her disability benefits application, as outlined in rule 742-3-17 of the Administrative Code, that member may not apply for any new, increased, or additional benefit for the disabling condition(s) described in such application, except for a member who is granted an off-duty disability less than the maximum amount permitted under division (D)(4) of section 742.38 or former division (C)(5) of section 742.37 of the Revised Code, or a member who had fewer than twenty-five years of service credit and was granted a partial disability in an amount less than the maximum permitted by division (D)(2) of section 742.38 or former division (C)(3) of section 742.37 of the Revised Code, may apply for an increase in payments to the maximum amount provided by those sections upon evidence of deteriorating earning capacity. Any subsequent request by that member shall be treated as a new application under this rule. In addition, a member may elect to receive interim payments without waiving the member's right to appeal a disability award, as provided for in paragraph (E) of this rule.(H) Additional medical treatment:(1) As a condition to granting an applicant disability benefits or continuing disability benefits under an existing award, as provided in division (B) of section 742.40 of the Revised Code, the member shall agree in writing to obtain any medical treatment recommended by the board's physician(s) and submit the required medical reports over the course of the treatment period.(2) Such additional medical treatment shall be of common medical acceptance and readily available, and may include, but is not limited to, medicine, alcohol and/or drug rehabilitation, or mechanical devices.(I) The board may suspend the awarded disability benefits and any health care stipend upon ninety days prior written notice to the member if the member fails to: (1) Obtain the recommended treatment required under division (B) of section 742.40 of the Revised Code, as referenced in paragraph (H) of this rule;(2) File the required medical report; or(3) Comply with the required treatment regimen. If the disability benefit recipient fails to comply within the aforementioned ninety day notice period, the suspension of disability benefits and any health care stipend shall be effective on the first day of the month immediately following the expiration of such notice period until the treatment is obtained, the required report is received by the board, or the board's physician certifies that the treatment is no longer helpful or advisable.
In the event the disability benefit recipient complies within the aforementioned ninety day notice period or the board's physician certified that the treatment is no longer helpful or advisable, OP&F will not suspend the disability benefit recipient's disability benefits and any health care stipend.
(J) If, after the aforementioned ninety day notice period, referred to in paragraph (I) of the rule, the disability benefit recipient submits to the requested treatment, submits the required reports, complies with the required treatment regimen, or the board's physician certifies that the treatment is no longer helpful or advisable, OP&F will reinstate the disability benefits and any health care stipend of such disability benefit recipient, effective as of the first day of the month immediately following the month in which the past due statement(s) were received in proper form by OP&F.(K) If a disability benefit recipient fails to submit to the medical examination required by division (C)(2) of section 742.40 of the Revised Code and such failure continues for one year, whether documented by OP&F's books or records or as presumed as provided in rule 742-3-10 of the Administrative Code, then the disability benefit recipient's disability benefits and any health care stipend shall be forfeited, as required by the terms of division (C)(2) of section 742.40 of the Revised Code. The forfeiture shall be effective as of the date of the original suspension, as referenced in a writing provided to the disability benefit recipient from OP&F.(L) For purposes of determining whether the recipient has refused to comply with the provisions of this division (C)(2) of section 742.40 of the Revised Code and this rule, OP&F may conclusively rely upon its books and records.(M) Except as expressly provided in this rule or section 742.40 of the Revised Code, all notices to the disability benefit recipient or applicant shall be either delivered personally, sent by express delivery service, certified mail, or first class U.S. mail, postage prepaid, and addressed to the disability benefit recipient at the most recent address set forth in OP&F's records. All notices to OP&F shall be addressed at its principal place of business. Except as otherwise specifically provided for in this rule, notices will be deemed given as of the earlier of:(1) The date of actual receipt;(2) The next business day when notice is sent via express mail or personal delivery; or(3) Three days after mailing in the case of first class or certified U.S. mail.(N) If an initial application for disability, an appeal, or a reconsideration application has been filed pursuant to paragraph (C), (E), or (F) of this rule and the supporting documentation has not been filed with OP&F or the applicant has not taken any action to prosecute his/her claims within six months of the filing with OP&F, the application, appeal, or application for reconsideration may be dismissed, as the case may be, for failure to prosecute the claim.(O) In determining whether a member had a physical examination before entry into the department, as required in division (D)(3) of section 742.38 of the Revised Code, OP&F shall use the following criteria:(1) For disability benefit applicants who became "members" of OP&F prior to September 16, 1998, OP&F will consider the physical examination requirement set forth in division (D)(3) of section 742.38 of the Revised Code to have been met if OP&F receives the following: (a) A writing signed by a licensed physician that documents the examination of the member prior to his/her entry into the police or fire department, as the case may be, and the writing is dated prior to the person becoming a "member" of OP&F, as such term is defined in division (E) of section 742.01 of the Revised Code or the person's entry into the department where the person is employed at the time of the filing of the disability application, provided such date is not more than nine months prior to such date; and(b) The writing signed by a licensed physician does not document the existence of any heart disease or any cardiovascular or respiratory disease. If the foregoing conditions are met, OP&F will then grant the disability applicant a disability that is presumed to be on-duty, as provided for in section 742.38 of the Revised Code.
(2) For disability benefit applicants who became "members" of OP&F after September 16, 1998, OP&F will consider the physical examination requirement set forth in division (D)(3) of section 742.38 of the Revised Code to have been met if the physician's report meets the requirements set forth in paragraph (A)(3) of rule 742-1-02 of the Administrative Code prior to the person becoming a "member" of OP&F or before the person's entry into the department where the person is employed at the time of the filing of the disability application, the physician's report does not diagnose the existence of any heart disease or any cardiovascular or respiratory disease. If the foregoing conditions are met, OP&F will then grant the disability applicant a disability that is presumed to be on-duty, as provided for in section 742.38 of the Revised Code.
(3) In the event the record of a member's pre-employment physical is lost, destroyed or unavailable, the board may waive the requirement that the absence of disease be evidenced by a physical examination prior to employment as described in paragraphs (O)(1) and (O)(2) of this rule if there is competent medical evidence, as determined by the board's physicians and/or medical advisor, that the cardiovascular or respiratory disease was not evident prior to or at the time of entry into the department.(4) For members who do not meet the criteria set forth in division (D)(3) of section 742.38 of the Revised Code and this rule, this will not preclude the member from being granted a duty-related disability if the member is able to document that the disability resulted from the performance of the member's official duties as a member of the police or fire department, as the case may be.(P) Firefighter cancer presumption: (1) In order to be eligible for the presumption described in division (D)(3)(b) of section 742.38 of the Revised Code, a member of a fire department who is applying for disability with cancer as an alleged disabling condition shall complete a questionnaire on a form provided by OP&F. The questionnaire shall be submitted to OP&F at the time of the initial application for disability benefits.(2) If the member certifies on the questionnaire required by paragraph (P)(1) of this rule that he or she was assigned to at least six years of hazardous duty as a member of a fire department and has had any exposure to an agent classified by the international agency for research on cancer or its successor agency as a group 1 or 2A carcinogen, the member shall provide OP&F with all documentation in support of such certification, including exposure reports, incident reports, shift logs, approved workers compensation claims, or other similar documentation.(3) The cancer presumption can be rebutted by evidence that demonstrates that the cancer was not incurred in the line of duty. Such evidence includes, but is not limited to, documentation which shows that the member: (a) Incurred the cancer before becoming a member of a fire department;(b) Used cigarettes or other tobacco products, and such usage was a significant factor in the cause or progression of the cancer;(c) Was not assigned to at least six years of hazardous duty as a member of a fire department, or fifteen years or more have passed since the member was last assigned to hazardous duty as a member of a fire department;(d) Has not had any exposure to an agent classified by the international agency for research on cancer or its successor agency as a group 1 or 2A carcinogen;(e) Incurred the cancer as a result of employment or business that is secondary to his or her employment as a member of a fire department;(f) Is not receiving workers compensation for a cancer diagnosis; and(g) Has undergone genetic testing which indicates a predisposition for contracting certain cancers.Ohio Admin. Code 742-3-05
Effective: 4/21/2024
Five Year Review (FYR) Dates: 2/5/2029
Promulgated Under: 111.15
Statutory Authority: 742.10
Rule Amplifies: 742.38, 742.353
Prior Effective Dates: 01/01/1977, 05/12/1983, 07/26/1986 (Emer.), 10/16/1986, 10/12/1989, 07/28/1995, 10/15/1997,10/10/1998 (Emer.), 03/29/1999, 05/01/2000,10/23/2000, 03/19/2001, 09/07/2001 (Emer.), 11/23/2001, 03/22/2004, 02/16/2006, 07/24/2008,10/16/2008, 01/22/2009, 08/02/2010 (Emer.), 10/17/2010, 06/07/2013, 12/26/2013, 01/20/2016 (Emer.), 04/07/2016, 04/06/2017 (Emer.), 06/22/2017,01/01/2019 (Emer.), 03/29/2019, 09/22/2022,01/14/2023