W. Va. Code R. § 162-10-3

Current through Register Vol. XLI, No. 24, June 14, 2024

Section 162-10-3 - Disability Applications and Petitions; Eligibility

3.1. A member of the Deputy Sheriff Retirement System, or a person acting with legal authority on behalf of the member, who remains in covered employment, may file a disability retirement application with the Board whenever the member has reason to believe that he or she is no longer physically or mentally capable of performing the essential duties of a law enforcement officer. Application shall be made on forms approved by the Board, and the member shall cause a copy of the application to be served upon the Sheriff at the time of its filing with the Board.

3.2. If the Sheriff has reason to believe that a member is no longer physically or mentally capable of performing the essential duties of a law enforcement officer, and if the member has failed or refused to file an application for disability retirement, the Sheriff may file a petition with the Board seeking the disability retirement of the member. The Sheriffs petition shall be made on forms approved by the Board, and a copy of the petition shall be served by the Sheriff upon the member at the time of the filing of the petition with the Board. The cost of the treating physician's examination, when requested by the Sheriff, shall be at the Sheriffs expense. The member shall cooperate fully with the Board in the scheduling of the examinations, and shall appear at the time and place for scheduled examinations as requested by the Board. The Board shall provide advance notice to the member that if he or she fails to appear at the time and place for scheduled examinations requested by the Board, he or she may be held responsible for some or all fees charged by the physician's office for that scheduled exam.

3.3. Once a member has commenced to receive a retirement benefit from the Deputy Sheriff Retirement System, the retired member is no longer eligible to apply for disability retirement benefits, unless he or she proves to the Board, by clear and convincing evidence, that his or her alleged disability is a direct and proximate result of an injury or illness sustained in the line of duty. If more than five years have passed since the time a member has commenced regular retirement on the basis of age and service, there shall be a rebuttable presumption that the retired member's illness or injury is not directly and proximately related to his or her duties as a deputy sheriff. For members who have left covered employment and who have elected to defer their retirement, the five year period referred to in this rule begins to run on the date the member leaves the active performance of the duties required of a deputy sheriff.

3.4. Notwithstanding any provision of this rule to the contrary, a member who has applied for and commenced to receive a partial duty related disability award may apply to the Board for a total duty disability award, if the member believes that his or her condition has deteriorated to the point that he or she no longer retains the mental or physical ability to engage in any gainful employment.

3.5. Notwithstanding any provision of this rule to the contrary, a member who has applied for and commenced to receive a partial non-duty related disability award may apply to the Board for a total non-duty disability award, if the member believes that his or her condition has deteriorated to the point that he or she no longer retains the mental or physical ability to engage in any gainful employment.

3.6. In the event that a member or that member's Sheriff on behalf of the member has applied for and has been denied disability retirement by the Board, neither the member nor that member's Sheriff on behalf of the member may file another application for disability retirement with the Board until the passage of one year from the date of the Board's last denial. Notwithstanding the minimum one year reapplication period, the Board may, in its sole discretion, agree to waive the minimum one year reapplication period for a member or that member's Sheriff on behalf of the member if waiver of the reapplication period is requested by the member or that member's Sheriff on a form approved by the Board. The member or that member's Sheriff shall demonstrate to the satisfaction of the Board, through medical records, reports or other reliable evidence, that the member has suffered a new or substantial worsening of his or her medical condition since the Board's most recent denial of his or her application for disability retirement.

W. Va. Code R. § 162-10-3