Section 36-8-8-12.7 - Hearings; notice; procedure; discovery; determinations; appeals; records; determination whether disability in line of duty(a) This section applies to hearings conducted by local boards concerning determinations of impairment under this chapter or of disability under IC 36-8-5-2(g), IC 36-8-6, IC 36-8-7, and IC 36-8-7.5.(b) At least five (5) days before the hearing, the local board shall give notice to the fund member and the safety board of the time, date, and place of the hearing.(c) The local board must hold a hearing not more than ninety (90) days after the fund member requests the hearing.(d) At the hearing, the local board shall permit the fund member and the safety board to: (1) be represented by any individual;(2) through witnesses and documents, present evidence;(3) conduct cross-examination; and(e) At the hearing, the local board shall require all witnesses to be examined under oath, which may be administered by a member of the local board.(f) The local board shall, at the request of the fund member or the safety board, issue:(2) discovery orders; and(3) protective orders; in accordance with the Indiana Rules of Trial Procedure that govern discovery, depositions, and subpoenas in civil actions.
(g) The local board shall have the hearing recorded so that a transcript may be made of the proceedings.(h) After the hearing, the local board shall make its determinations, including findings of fact, in writing and shall provide copies of its determinations to the fund member and the safety board not more than thirty (30) days after the hearing.(i) If the local board: (1) does not hold a hearing within the time required under subsection (c); or(2) does not issue its determination within the time required under subsection (h); the fund member shall be considered to be totally impaired for purposes of section 13.5 of this chapter and, if the issue before the local board concerns the class of the member's impairment, the member shall be considered to have a Class 1 impairment. The system board shall review an impairment determined under this subsection as provided in section 13.1 of this chapter.
(j) The local board may on its own motion issue:(2) discovery orders; and(3) protective orders; in accordance with the Indiana Rules of Trial Procedure that govern discovery, depositions, and subpoenas in civil actions.
(k) At the hearing, the local board may exclude evidence that is irrelevant, immaterial, unduly repetitious, or excludable on the basis of evidentiary privilege recognized by the courts.(l) At the hearing, the local board may request the testimony of witnesses and the production of documents.(m) If a subpoena or order is issued under this section, the party seeking the subpoena or order shall serve it in accordance with the Indiana Rules of Trial Procedure. However, if the subpoena or order is on the local board's own motion, the sheriff of the county in which the subpoena or order is to be served shall serve it. A subpoena or order under this section may be enforced in the circuit or superior court of the county in which the subpoena or order is served.(n) With respect to a hearing conducted for purposes of determining disability under IC 36-8-6, IC 36-8-7, or IC 36-8-7.5, the determination of the local board after a hearing is final and may be appealed to the court.(o) With respect to a hearing conducted for purposes of determining impairment or class of impairment under this chapter, the fund member may appeal the local board's determinations. An appeal under this subsection: (1) must be made in writing;(2) must state the class of impairment and the degree of impairment that is claimed by the fund member;(3) must include a written determination by the chief of the police or fire department stating that there is no suitable and available work; and(4) must be filed with the local board and the system board's director no later than thirty (30) days after the date on which the fund member received a copy of the local board's determinations.(p) To the extent required by the Americans with Disabilities Act, the transcripts, records, reports, and other materials generated as a result of a hearing, review, or appeal conducted to determine an impairment under this chapter or a disability under IC 36-8-6, IC 36-8-7, or IC 36-8-7.5 must be: (1) retained in the separate medical file created for the member; and(2) treated as a confidential medical record.(q) If a local board determines that a fund member described in section 13.3(a) of this chapter has a covered impairment, the local board shall also make a recommendation to the system board concerning whether the covered impairment is an impairment described in section 13.3(c) of this chapter or whether it is an impairment described in section 13.3(d) of this chapter. The local board shall forward its recommendation to the system board.(r) The system board shall review the local board's recommendation not later than forty-five (45) days after receiving the recommendation and shall then issue an initial determination of whether the disability is in the line of duty or not in the line of duty. The system board shall notify the local board, the safety board, and the fund member of its initial determination.(s) The fund member, the safety board, or the local board may object in writing to the system board's initial determination under subsection (r) not later than fifteen (15) days after the initial determination is issued. If a written objection is not filed, the system board's initial determination becomes final. If a timely written objection is filed, the system board shall issue a final determination after a hearing. The final determination must be issued not later than one hundred eighty (180) days after the date of receipt of the local board's recommendation.Amended by P.L. 35-2012, SEC. 129, eff. 7/1/2012.As added by P.L. 311-1989, SEC.10. Amended by P.L. 5-1990, SEC.22; P.L. 4-1992, SEC.47; P.L. 22-1998, SEC.22; P.L. 195-1999, SEC.33; P.L. 118-2000, SEC.24; P.L. 29-2006, SEC.2.