§ 2-81. Disability.

(a)

A member shall be disabled under the terms of the plan if the member has suffered an illness, injury or disease which renders the member permanently and totally incapacitated, physically or mentally, from regular and continuous duty as police officer. Disability shall not be determined based solely on the fact that a member cannot perform all of the duties of a police officer as set forth in the job description. The definition of disability shall be applied to an individual who because of illness, injury, or disease, cannot perform any job in the police department which is within the member's physical or mental capabilities and further provided that a vacancy exists which will be made available by the city. The city shall be required to accommodate disabled workers in accordance with state and federal law and shall not withhold assignment to vacant positions on the basis that a member is not capable of performing all of the tasks of a police officer.

(b)

A member shall be eligible for a service-incurred disability retirement from the entry date into the plan. A service-incurred disability retirement shall mean that the disability arose as a result of an act occurring, or presumed by law to have occurred, in the performance of service with the city.

(c)

A member shall be eligible for a non-service incurred disability retirement upon the completion of ten (10) years of credited service. A non-service incurred disability shall be an illness, injury, or disease, which did not occur as a result of an act in the performance of service with the city.

(d)

The service-incurred disability benefit shall be paid in equal monthly installments in an amount equal to the member's accrued benefit, but not less than forty-two (42) percent of the member's final monthly compensation as of the date of disability retirement.

(e)

The non-service incurred disability benefit shall be paid on a monthly basis in an amount equal to two percent of final monthly compensation multiplied by the number of years of credited service, but shall not be less than twenty-five (25) percent of average monthly compensation. For the purposes of a non-service incurred disability benefit, final monthly compensation shall be determined as of the last day the member was actively at work for the city.

(f)

Disability benefits shall be paid on the first day of each month. No benefit shall be paid until the board of trustees has actually considered and voted upon entitlement to disability.

(g)

Disability retirement income shall continue until the death of the member, or recovery from disability and return to active police service. At the option of the member, a conversion of a service-incurred disability retirement may be made to a normal service retirement with credited service for all years of disability based on the salary applicable at time of disability. This election may be made for a period not to exceed thirty (30) days after the member reaches normal retirement age and receives written notice of the right of election from the plan. In the event of the death of a member who is retired on a disability benefit and has not received one hundred twenty (120) payments, the remaining unpaid benefits shall be paid to a designated beneficiary selected by the member and communicated to the board on the form prescribed by the board. In the event that there is no designated beneficiary, the remaining unpaid benefits shall be paid to the estate of the deceased member. In the event a member's disability is converted to a service retirement as set forth in this section, the member shall be accorded credited service for the period of disability.

(h)

The board of trustees shall have the continuing right to require disabled members to submit to a medical examination to determine that the member remains disabled. In order for a member to be deemed recovered, the medical board must recommend to the board of trustees that the member has sufficiently recovered to again engage in the duties of a police officer and that the city has certified that it has a position within the police department available for the member consistent with the member's medical condition.

(i)

Upon finding that a member is no longer disabled, the member shall return to work for the city at the same rank and position previously occupied and shall be placed into the appropriate step in the pay plan which the member would have occupied but for the disability. The member shall again become an active member of the plan and shall receive, if reemployment is accepted, creditable service for any period of time in which the member was receiving disability benefits. If the member declines reemployment with the city, the member shall be deemed to have terminated employment on the date that the disability commenced. In such event, the member may receive a return of contributions unless, prior to that date, the member has received disability benefits equal to or greater than the amount of the accumulated contributions. If the member declines re-employment within the city, the member shall be deemed to have terminated employment on the date that the disability benefit commenced.

(j)

No member shall be eligible to receive disability benefits from the retirement plan during any period of time that the member is receiving a salary from the city. This section shall not apply to the receipt of worker's compensation benefits.

(k)

Application for disability retirement shall be made on a form prescribed by the board of trustees. The member shall execute such medical releases as are necessary to permit the board of trustees to review the medical records needed to determine the question of disability and to discuss said records at a public meeting. Upon receipt of an application for disability, the board shall appoint a medical committee to be composed of not less than one (1) nor more than three (3) licensed physicians. The applicant for disability shall be required to submit to examination by the medical committee. The medical committee shall report its findings to the board of the trustees which shall include a determination, to the extent reasonably possible, the origin of the disability, whether the disability is permanent, and whether the disability is total. In making that determination, the medical committee shall be bound by the definition of disability set forth in this plan.

(l)

Upon receipt of the report of the medical committee, the trustees shall schedule a public hearing at which time the board shall review all reports of the medical committee, together with any such documentary evidence as the applicant may wish to submit. The board shall conduct a preliminary determination as to whether the member is permanently and totally disabled based upon the written documentation presented. If the board does not grant the application based on the written documentation, it shall inform the member in writing of the reasons for the denial of the application. The member may, within thirty (30) days of receipt of the board's preliminary denial, request a full evidentiary hearing before the board. Said hearing will be conducted consistent with the principles of due process and the rules of evidence generally applicable to administrative proceedings shall apply. The board shall have the power to issue subpoenas compelling the attendance of witnesses. At said hearing the applicant may present such oral and written evidence as the applicant deems necessary to establish its burden of proof. The board may appoint special counsel as an advocate to cross-examine witnesses and to offer argument in opposition to the application. The attorney for the board shall not serve both as advocate and as advisor to the board in the same proceeding. The applicant and the board shall have the right to examine and cross-examine all witnesses. The decision of the board shall be based solely upon the evidence presented and the law applicable to this plan. Following the conclusion of the hearing, the board shall render an opinion in writing setting forth the reasons for the grant or denial of the benefit. In the event that the disability benefit is denied, the applicant shall have the right to judicial review by complaint for common law certiorari in the Circuit Court of Broward County.

(m)

The board of trustees may prescribe rules of procedure to implement the provisions of this plan relating to the conduct of disability hearings.

(n)

No member shall be granted a disability pension upon a determination by the board that the disability resulted from:

(1)

Excessive and habitual use of drugs, intoxicants or narcotics;

(2)

Injury or disease sustained while wilfully and illegally participating in fights, riots, civil insurrections or while committing a crime;

(3)

Injury or disease sustained by the police officer while serving in the armed forces;

(4)

Injury or disease sustained by the police officer after employment has terminated; or

(5)

Injury or disease sustained by the police officer while working for anyone other than the city and arising out of such employment.

(Ord. No. 00O-3-15, § 2, 5-8-00; Ord. No. 00O-12-85, § 1, 12-18-00; Ord. No. 01O-03-17, § 1, 3-26-01)