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The Oregon Administrative Rules contain OARs filed through November 15, 2014
 
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OREGON PUBLIC EMPLOYEES RETIREMENT SYSTEM

 

DIVISION 15

DISABILITY RETIREMENT ALLOWANCES

459-015-0000

Purpose

(1) The Legislative Assembly has established within the Public Employees Retirement System (PERS) a program for early retirement by reason of disability. The disability retirement program is solely intended to provide benefits to those members who are unable to work because they are disabled and cannot perform any work for which they are qualified.

(2) Disability retirement is an expedited retirement allowance resulting from a disability and is intended solely to provide benefits to PERS members who are unable to work because they are disabled. A disability retirement allowance is not in addition to a service retirement allowance.

Stat. Auth.: ORS 238.650
Stats. Implemented: ORS 238.320 - 238.345
Hist.: PERS 15-2005, f. & cert. ef. 10-3-05

459-015-0001

Definitions

The words and phrases used in this division have the same meaning given them in ORS Chapter 238 and OAR 459-005-0001. Additional terms are defined as follows unless the context requires otherwise.

(1) “Any work for which qualified” means a job, not necessarily the last or usual job, which the applicant for a disability retirement allowance:

(a) Is physically and psychologically capable of performing; and

(b) Has, or may obtain with reasonable training the knowledge, skills and abilities, to perform the job.

(2) “Certified vocational consultant” means a person who satisfies the criteria set forth under either of the following:

(a) A Master’s Degree in vocational rehabilitation, and one year of experience in performing vocation evaluations or developing individualized return-to-work plans; or a Bachelor’s Degree and two years of such experience. All degrees must have been earned at an accredited institution; or

(b) Accredited as a Certified Rehabilitation Counselor (CRC) by the Commission on Rehabilitation Counselor Certification; as a Certified Disability Management Specialist (CDMS) by the Certification of Disability Management Specialists Commission; or a Certified Vocational Evaluation Specialist (CVE) or a Certified Work Adjustment Specialist (CWA) by the Commission on Certification of Work Adjustment and Vocational Evaluation Specialists.

(3) “Confidential information” means information of a personal nature such that disclosure would constitute an unreasonable invasion of privacy as defined by state law.

(4) “Date an application for disability retirement is filed” means the receipt date as determined pursuant to OAR 459-005-0220.

(5) “Date of disability” means the later of:

(a) The date an active member ceased to work because of inability to perform any work for which qualified due to injury or disease; or

(b) The date an inactive member became unable to perform any work for which qualified provided such inability occurred within six months after the date of separation from service.

(6) “Date of separation from service” means the later of: the last day worked or the last day of paid leave with a PERS participating employer.

(7) “Date of termination” means the date a member terminates from employment such that an employee/employer relationship no longer exists.

(8) “Earned income” means income that includes, but is not limited to:

(a) Salary or wages received as an employee;

(b) Self-employment income from:

(A) Services industry;

(B) Sales;

(C) Assembly or manufacturing;

(D) Consulting;

(E) Property management;

(F) Hobby income; or

(G) Book advances.

(c) “Earned income” does not include:

(A) Investment income;

(B) Rent; and

(C) Royalties.

(d) Earned income is deemed to be received by the member on the date it is issued by the payer.

(9) “Effective date of disability retirement” means the first day of the month following the date of disability in which all of the following has been met:

(a) The member is paid no salary from a participating employer, and

(b) The member does not receive paid leave from a participating employer except for any lump sum payment for accrued vacation leave or compensatory time.

(10) “Extended duration” means a period of not less than 90 consecutive calendar days, unless the disability is expected to result in the death of the disabled member in less than 90 days.

(11) “Granted service” means that portion of creditable service used solely to calculate a disability retirement allowance under ORS 238.320 that is not performed or earned.

(12) “Independent medical exam” means an exam or exams conducted by a physician chosen by PERS for purposes other than treatment which results in the issuance of a report or reports based on those exams, giving an opinion regarding the claimed injury or disease.

(13) “Material contributing cause” means the efficient, dominant, and proximate cause of the disability, without which the member would not be disabled.

(14) “Monthly salary” means “salary” as defined in ORS 238.005 that is earned in the last full calendar month of employment, and includes employer payments under ORS 238A.335 and differential wage payments as defined in OAR 459-005-0001.

(a) Retroactive payments or payments made due to clerical errors, paid in accordance with ORS 238.005, are allocated to the period the salary was earned or should have been earned.

(b) Payments of salary paid within 31 days of separation are allocated to the period the salary was earned and should be considered as paid on the last date of employment.

(15) “Monthly salary received” means the greater of the monthly salary paid for the last full calendar month of:

(a) Employment before the date of disability; or

(b) Differential wage payments made before the date of disability. This subsection is effective January 1, 2009.

(16) “Normal retirement age” means the age at which a member can retire without a reduced benefit as set forth under ORS 238.005 and 238.280.

(17) “Performance of duty” means whatever an employee may be directed, required or reasonably expected to do in connection with his or her employment, and not solely the duties particular to his or her position.

(18) “Periodic review” means a review of a member receiving a disability retirement allowance to determine whether or not a continued allowance is warranted.

(19) “Physician” means a medical doctor, a doctor of osteopathy, a doctor of oral surgery, a chiropractic doctor, a naturopathic doctor, or a doctor of psychology practicing only within the purview of their license issued by the designated authority of a state.

(20) “Pre-existing condition” means a condition that was not sustained in actual performance of duty in a qualifying position with a participating employer.

(21) “Protected health information” means health information created or received by a health care provider, health plan, or health care clearinghouse, where an individual has a reasonable belief that the information can identify the individual, which relates to:

(a) The past, present, or future physical or mental health of an individual;

(b) The provision of health care to an individual; or

(c) The past, present, or future payment for the provision of health care to an individual.

(22) “Similar in compensation” means salary or other earned income, excluding overtime, equaling at least 80% of the monthly salary.

(23) “Total disability” means the inability to perform any work for which qualified for an extended duration due to physical or mental incapacitation.

(24) “Training or vocational rehabilitation program” means a comprehensive, coordinated program, usually state or federally funded, to train and assist individuals with disabilities in securing gainful employment commensurate with their abilities and capabilities.

(25) “Vocational evaluation” means an evaluation conducted by a certified vocational consultant, to determine the ability of an applicant to perform any work for which they are qualified.

(26) “Work related stress” means conditions or disabilities resulting from, but not limited to:

(a) Change of employment duties;

(b) Conflicts with supervisors;

(c) Actual or perceived threat of loss of a job, demotion, or disciplinary action;

(d) Relationships with supervisors, coworkers, or the public;

(e) Specific or general job dissatisfaction;

(f) Work load pressures;

(g) Subjective perceptions of employment conditions or environment;

(h) Loss of job or demotion for whatever reason;

(i) Fear of exposure to chemicals, radiation biohazards, or other perceived hazards;

(j) Objective or subjective stresses of employment; or

(k) Personnel decisions.

Stat. Auth.: ORS 238.650
Stats. Implemented: ORS 238.320 - 238.345
Hist.: PERS 15-2005, f. & cert. ef. 10-3-05; PERS 1-2009, f. & cert. ef. 2-12-09; PERS 3-2010, f. & cert. ef. 5-28-10; PERS 8-2011, f. & cert. ef. 10-5-11

459-015-0005

Eligibility for Disability Retirement Allowances

(1) A member must be totally, not partially, disabled and unable to perform any work for which qualified for an extended duration to be eligible for a disability retirement allowance.

(2) In determining a member’s eligibility for a disability retirement allowance, the burden of proof is upon the applicant. The Board is not required to prove whether the applicant is or is not eligible for a disability retirement allowance.

(3) Eligibility requirements for duty disabilities.

(a) To be eligible for a duty disability a member must prove:

(A) The mental or physical incapacitation arose out of and in the course of duty and was not intentionally self-inflicted; and

(B) The on the job injury must be the material contributing cause of the disability even if the member has a pre-existing condition.

(b) For work related stress to be considered the material contributing cause of the disability all of the following criteria must be met:

(A) The employment conditions producing the work-related stress exist in a real and objective sense;

(B) The employment conditions producing the work-related stress are conditions other than conditions generally inherent in every working situation or reasonable disciplinary, corrective or job performance evaluation actions by the employer, or cessation of employment or employment decisions attendant upon ordinary business or financial cycles;

(C) There is a diagnosis of a mental or emotional disorder which is generally recognized in the medical or psychological community; and

(D) There is evidence that the work-related stress arose out of and in the course of employment.

(4) Eligibility requirements for non-duty disabilities. A member applying for non-duty disability retirement must have a minimum of 10 years of employment in a PERS qualifying position as calculated pursuant to ORS 238.320(6).

(5) A member’s disability retirement allowance shall be calculated based on:

(a) Creditable service; and

(b) Granted service if the member had not attained:

(A) Age 55 if the last qualifying position was as a police officer or a firefighter.

(B) Age 58 if the last qualifying position was as other than a police officer or firefighter.

(6) Granted service is:

(a) Not included in the calculation of increased benefits payable under ORS 238.380.

(b) Included in the calculation of increased benefits payable under ORS 238.385.

(7) Termination of membership. Disability retirement allowances are available only to PERS members. Former PERS members who have terminated their membership pursuant to ORS 238.095 are not eligible to receive PERS disability retirement allowances.

Stat. Auth.: ORS 238.650
Stats. Implemented: ORS 238.320 - 238.345
Hist.: PERS 2-1992, f. & cert. ef. 1-14-92; PERS 15-2005, f. & cert. ef. 10-3-05; PERS 3-2010, f. & cert. ef. 5-28-10; PERS 11-2011, f. & cert. ef. 11-23-11

459-015-0010

Criteria for Granting and Denying Disability Retirement Allowances

(1) Medical documentation is required by PERS. Each disability retirement applicant shall supply any treating or consulting physician’s examination report or other medical information requested by PERS. PERS may base its determination on either a treating or consulting physician’s medical examination report or have the applicant examined by one or more physicians selected by PERS, or both.

(2) All claims of a disability must be supported by at least one physician’s report, resulting from a physical examination, documenting how the injury or disease incapacitates the member.

(3) In addition, a disability retirement applicant shall be required to furnish the following:

(a) For claims of mental or emotional disorder, at least one report of examination by a psychiatrist or at least one report of evaluation by a psychologist when accompanied by a report of physical examination by a treating or consulting physician;

(b) For claims of orthopedic injury or disease, at least one report of a treating or consulting orthopedic specialist;

(c) For claims of neurological or neurosurgical injury or disease, at least one report of a treating or consulting neurologist or neurosurgeon;

(d) For claims of fibromyalgia, at least one report of a treating or consulting rheumatologist; and

(e) Any other specialized physician’s report that PERS deems necessary.

(4) To demonstrate that he or she is unable to perform any work for which qualified, as defined in OAR 459-015-0001(1), the applicant shall document how the injury or disease incapacitates the applicant. The standard is subjective (that is, whether the applicant is actually incapacitated) not objective (that is, whether a “normal” member would have been incapacitated by the same events).

(a) In determining what work for which a member is qualified, the following factors shall be considered:

(A) Previous employment experience;

(B) Formal education;

(C) Formal training;

(D) Transferable skills;

(E) Age; and

(F) Physical or mental impairment.

(b) In determining what work for which a member is qualified, PERS may request, at PERS’ expense, a vocational evaluation be done by a vocational consultant who is fully certified as set forth in OAR 459-015-0001(2).

(c) The inability of the applicant to perform the duties of his or her last job, in itself, does not satisfy the criterion.

(5) When there is a dispute among medical experts, more weight will be given to those medical opinions that are both well-reasoned and based on complete information.

(6) The Board may deny any application or discontinue any disability retirement allowance if an applicant:

(a) Refuses to submit to an independent medical or vocational examination; or

(b) Refuses to submit to any medical examination or supply a completed application or review form.

Stat. Auth.: ORS 238.650
Stats. Implemented: ORS 238.320 & 238.335
Hist.: PERS 2-1992, f. & cert. ef. 1-14-92; PERS 4-1992, f. & cert. ef. 5-4-92; PERS 15-2005, f. & cert. ef. 10-3-05; PERS 8-2014, f. & cert. ef. 7-25-14

459-015-0020

Application Required

(1) Application must be made on forms provided by PERS. PERS may require the member to provide any information that PERS considers necessary to determine the applicant’s eligibility for a disability retirement allowance.

(2) No disability retirement allowance will be paid unless the member files a timely and complete application.

(3) Application must be made by a member or the member’s authorized representative. A representative must submit to PERS written proof of the representative’s authority; such as, a power of attorney, guardianship or conservatorship appointment.

(4) Upon the filing of an application for a disability retirement allowance, PERS will notify the applicant’s current or most recent employer of the filing. Additionally, PERS may request of an employer information pertaining to current or previous employment.

(5) When an employee member is disabled due to injury or disease, the member may make application immediately after the last day worked even though the member may be on a paid leave or on an official leave of absence without pay. No application will be accepted that predates the last day the member was actually on the job.

(6) An application will be considered filed in a timely manner when received by PERS as follows:

(a) For a member who is totally disabled due to injury or disease before terminating employment from all PERS qualifying positions and has not withdrawn the amount credited to the account of the member in the system, the member must file an application for a disability retirement allowance within five calendar years of the date of termination. Total disability must be continuous from the date of separation from service to the date the application is filed.

(b) For a member who is totally disabled due to injury or disease after terminating employment from all PERS qualifying positions and has not withdrawn the amount credited to the account of the member in the system, the member must file an application for a disability retirement allowance within six months (180 days) after the date of separation from service. Total disability must be continuous from the date of disability to the date the application is filed.

(c)(A) For a member who is totally disabled due to injury or disease but does not terminate employment, an application for disability retirement must be filed no later than 90 calendar days from:

(i) The date the member is medically released for work; or

(ii) The date the member returns to work, whichever is earlier.

(B) Total disability must be continuous from the date of disability to the earlier of paragraph (A)(i) or (ii) of this subsection.

(d) A member cannot apply for disability retirement before their date of disability.

(7) In determining the effective date of a disability retirement allowance, PERS may allow up to 60 months of benefits retroactive from the date the application is filed with PERS, but in no case earlier than the first day of the month following the date of separation.

(8) When making application for a PERS disability retirement allowance, PERS will request the applicant authorize any physician, health practitioner, hospital, clinic, pharmacy, employer, employment agency, or government agency to release and disclose to PERS, or independent physicians and vocational consultants retained by PERS, any information within their records or knowledge, including that information otherwise protected under federal or state law, regarding the applicant’s health and employment which PERS determines relates to the applicant’s claim of disability and inability to perform any work for which qualified.

(9) When filing an application for disability retirement allowance, if the applicant wishes to authorize release and disclosure of protected health information, as defined in OAR 459-015-0001, the applicant must complete and sign a consent form which specifically authorizes the release and disclosure of such information.

(a) This authorization is voluntary. Because PERS is not a covered entity as defined in 45 C.F.R., Parts 160 and 164, the protected health information is not subject to federal and state health information privacy laws, but may be protected under Oregon State Public Record disclosure laws.

(b) This authorization may be revoked in writing at any time, except to the extent the entities named on the authorization form(s) have taken action in reliance of the authorization.

(c) If the applicant refuses to give or revokes authorization to disclose to PERS medical information that PERS determines it needs to evaluate the application, eligibility for a disability retirement allowance may be affected.

Stat. Auth.: ORS 238.650
Stats. Implemented: ORS 238.320 - 238.345
Hist.: PERS 2-1992, f. & cert. ef. 1-14-92; PERS 15-2005, f. & cert. ef. 10-3-05; PERS 8-2011, f. & cert. ef. 10-5-11; PERS 11-2012, f. & cert. ef. 8-31-12

459-015-0025

Application Processing — Independent Examinations and Appeals

(1) Following the timely filing of a completed application, PERS may, at its discretion, request an independent medical exam or a vocational evaluation. If PERS requests one or more of these exams or evaluations, PERS will pay the reasonable associated expenses.

(a) For independent medical exams, PERS shall inform the applicant in writing and postmarked not less than ten days prior to a scheduled examination of the identity of the physician(s) selected to examine the applicant, together with location, date and time.

(b) For vocational evaluations, the vocational consultant or locator service shall inform the applicant of the location, date and time of the scheduled examination.

(c) If the applicant fails to meet the scheduled appointment or fails to reschedule the examination within five days of notification, PERS will not reschedule an examination at PERS' expense unless the applicant can demonstrate good cause for having failed to meet the scheduled appointment or reschedule the appointment as required.

(d) Good cause includes, but is not limited to:

(A) Physical or mental incapacitation preventing the member from meeting or rescheduling the examination;

(B) Failure of PERS or the vocational consultant or locator service to send the member notice as described above; or

(C) A death in the member's immediate family.

(e) Good cause does not include:

(A) A member's refusal to attend the scheduled appointment;

(B) A member's failure to meet the appointment with no reason provided; or

(C) A member's failure to make appropriate transportation arrangements.

(2) When PERS requires an applicant to travel to be examined by a physician, vocational consultant, or other professional, PERS will reimburse the applicant's reasonable transportation costs based on the least costly alternative and on availability. Travel by private vehicle shall be compensated at the rate applicable to travel by unrepresented state employees on state business. Transportation by taxi, bus, rail, or other public carrier shall be paid only upon presentation of receipts from the providers. Lodging and subsistence shall be allowed only when an overnight stay is necessary and shall be paid at the rate applicable to unrepresented state employees traveling on state business. Reimbursements will be reduced by the amount of any penalty assessed by PERS because of a member's failure to meet a scheduled appointment.

(3) In the event a member fails to meet a scheduled appointment in accordance with section (1) of this rule, and PERS is assessed a penalty by the service provider for the failure to meet the scheduled appointment, the disability applicant shall bear the cost of the penalty as follows:

(a) If the disability application is not approved, by making direct payment to the service provider who assessed the penalty; or

(b) If the disability application is approved:

(A) By making direct payment to the service provider who assessed the penalty; or

(B) By having the amount of the penalty deducted from the monthly disability retirement allowance, as provided for under ORS 238.715, payable to the member until the invoice is satisfied.

(4) The Director, or the Director's designee, is hereby authorized to approve or deny a disability retirement application. Upon receipt and review of all necessary documentation, staff shall present applicant's claim to the Director, or the Director's designee, with a recommendation to approve or to deny a disability retirement allowance. The Director, or the Director's designee, may accept or reject the staff's recommendation, or refer the application back to staff for further documentation and review.

(a) If the Director, or the Director's designee, approves a disability claim, the staff will notify the applicant and the applicant's employer of such approval.

(b) If the disability claim is denied, the staff shall issue an Intent to Deny letter by regular and certified mail, return receipt requested. The denial letter shall advise the applicant that additional information to substantiate the claim, or a request for an extension of 30 days to present additional information, may be submitted to the staff in writing within 30 days of the date of the Intent to Deny letter.

(c) An applicant who is otherwise eligible for a service retirement allowance shall have 30 days from the date of the Intent to Deny letter to apply for a service retirement allowance and be entitled to establish an effective date of service retirement for the first of the month that the application for disability retirement allowance was received by PERS.

(d) The application for a service retirement allowance as provided for in subsection (c) of this section shall not preclude a disability applicant from requesting a contested case hearing under OAR 459-015-0030.

(5) Following the issuance of an Intent to Deny letter, staff will review any additional information which is submitted within 30 days from the issuance of the Intent to Deny letter.

(a) If the additional information results in a recommendation to approve the application, staff shall resubmit the application to the Director, or the Director's designee, with the recommendation.

(b) If the additional information does not result in a recommendation to approve the application, PERS will issue a final denial letter by regular and certified mail, return receipt requested.

(c) If no additional information is received, PERS will issue a final denial letter by regular and certified mail, return receipt requested.

(6) The final denial letter will provide the applicant with notification of the right to request a contested case hearing as provided for in OAR 459-015-0030 and 459-001-0035.

(7) PERS will notify the most recent employer of the approval or the denial of an application for a disability retirement allowance, a request for review of the Director's determination, and the Director's final action. Such notification will not contain any confidential information as defined in OAR 459-015-0001(3).

Stat. Auth.: ORS 238.650
Stats. Implemented: ORS 238.320 & 238.335
Hist.: PERS 2-1992, f. & cert. ef. 1-14-92; PERS 5-1992, f. & cert. ef. 5-4-92; PERS 15-2005, f. & cert. ef. 10-3-05

459-015-0030

Hearings on Denial or Discontinuance of Disability Retirement Allowances

(1) A final denial of an application for disability benefits, or any decision discontinuing a previously granted disability retirement allowance may be reviewed in a contested case hearing.

(2) A contested case hearing may be requested by a member by filing with the Board a written request as provided for in OAR 459-001-0035.

(3) The contested case hearing shall be heard before an administrative law judge designated by the Office of Administrative Hearings and conducted in accordance with the Attorney General’s Model Rules of Procedure as adopted by OAR 459-001-0005. The member may represent himself/herself or be represented by legal counsel. An Assistant Attorney General will appear at the hearing to assist the staff in presenting its position, and to assist in the development of a complete hearing record.

(4) The Board generally deliberates and decides on final orders during regularly scheduled board meetings. The Board may instead deliberate and decide at any other time and place allowed by law, as determined on a case-by-case basis, such as electronically or via a telephone conference.

(5) In accordance with OAR 459-001-0040, before initiating any judicial review of a final order, an applicant may file with the Board a petition for reconsideration.

(6) Any disputed claim concerning a disability retirement allowance or discontinuance of such allowance may be voluntarily settled on a lump-sum basis subject to recommendation of the assigned Assistant Attorney General and final approval of the Board. Settlements approved by the Board shall be paid upon receipt of a “Release and Covenant Not to Sue” signed by the applicant and the applicant’s attorney, if any.

Stat. Auth.: ORS 183.310 - 183.550, 183.600 - 183.690 & 238.650
Stats. Implemented: ORS 238.320 - 238.345
Hist.: PER 6-1979(Temp), f. & ef. 11-21-79; PER 3-1980, f. & ef. 5-8-80; PERS 2-1992, f. & cert. ef. 1-14-92; Renumbered from 459-001-0020; PERS 9-2003, f. & cert. ef. 8-4-03; PERS 21-2005, f. & cert. ef. 11-1-05; PERS 7-2010, f. & cert. ef. 8-2-10

459-015-0035

Evidence — Contested Case Hearings

(1) Applicant's documentary evidence:

(a) At least 30 days before the scheduled hearing, the applicant shall file with the administrative law judge and serve upon the assigned Assistant Attorney General a copy of each document proposed to be introduced in evidence. Failure to comply may constitute grounds to deny admission of the document at hearing. Unless cross-examination is requested of the document preparer or custodian, within 20 days prior to hearing, a timely served and filed document may be offered subject to the same standards and received with the same effect as oral testimony;

(b) To develop a record that is necessary and appropriate and to achieve fairness, the administrative law judge has the discretion to admit documents/reports not filed and served within 30 days of a hearing unless the party opposing the admission demonstrates that the admission is prejudicial. The administrative law judge will also have the discretion to allow for cross-examination and rebuttal evidence not requested precisely in accordance with the rules.

(2) If cross-examination is requested of the document preparer or custodian as provided in subsection (1)(a) of this rule, and the requestor is informed within ten days prior to the hearing that the requested witness will not appear for cross-examination, the document may be received in evidence if the administrative law judge determines that it does not prevent the creation of a complete and accurate record upon which the Board will be able to make a well informed determination in the matter.

Stat. Auth.: ORS 183.310 - 183.550, 183.600 - 183.690, 237.171, 237.191 & 237.263
Stats. Implemented:
Hist.: PERS 2-1992, f. & cert. ef. 1-14-92; PERS 21-2005, f. & cert. ef. 11-1-05

459-015-0040

Proof of Case — Contested Case Hearings

(1) Burden of Proof in Hearings: The burden of proof for entitlement to a disability retirement allowance is upon the applicant. The Board is not required to prove that the applicant is entitled to a disability retirement allowance.

(2) Standards of Proof:

(a) An order granting entitlement to a disability retirement allowance shall be supported in the record by sufficient evidence demonstrating that the applicant suffers from a physical or mental/ emotional injury or disease, and that the applicant is unable to perform any work for which he or she is qualified;

(b) An order denying entitlement to a disability retirement allowance need not be supported by medical or vocational evidence presented by the Board. An order may deny entitlement to a disability retirement allowance if the applicant fails to present sufficient proof of disability and inability to work. An order may deny entitlement to a disability retirement allowance on the basis of medical or vocational evidence presented by the Board.

(3) Professional opinions:

(a) A physician may express an opinion regarding whether the injury or disease was caused by the performance of job duties;

(b) A physician may express an opinion regarding the applicant's ability to perform any work, related tasks, or functions;

(c) The administrative law judge shall have the discretion to give more weight to the testimony (findings and opinions) of the treating, the examining, or the consulting physician as the facts indicate.

Stat. Auth.: ORS 183.310 - 183.550, 183.600 - 183.690, 237.171, 237.191 & 237.263
Stats. Implemented:
Hist.: PERS 2-1992, f. & cert. ef. 1-14-92; PERS 21-2005, f. & cert. ef. 11-1-05

459-015-0045

Return to Work

(1) The Public Employees Retirement Board allows a member who is receiving a disability allowance to return to work as follows:

(a) Returning to work in a PERS qualifying position. A member who has not been medically released for any work for which qualified, may return to work in a PERS qualifying position, as defined by OAR 459-010-0003, for a 90-day trial period without losing disability retirement status. While the member is working during this trial period:

(A) The disability retirement allowance and supplemental benefits will be suspended.

(B) Any wages earned during the trial period are excluded from the definition of salary for purposes of computing PERS contributions or determining PERS retirement benefits unless the member continues the employment beyond 90 days. If the member continues beyond the 90 days, the period will be considered qualifying as of the first day the member returned to work and retroactive contributions, without interest, are required.

(b) Returning to work in a PERS non-qualifying position. A member who has not been medically released for any work for which qualified, may return to work with a PERS participating employer in a position not qualifying for PERS active membership, as defined by OAR 459-010-0003. Unless the member has reached normal retirement age, the monthly disability retirement will be adjusted by any earned income issued during that month which, when added to the disability retirement allowance, exceeds the gross monthly salary earned at the date of disability.

(c) Returning to work in a non-PERS position. A member who has not been medically released for any work for which qualified, may be employed by other than a PERS participating employer in a position that is not similar in compensation. Unless the member has reached normal retirement age, the monthly disability retirement allowance shall be adjusted by any earned income issued during that month which, when added to the disability retirement allowance, exceeds the gross monthly salary earned at the date of disability.

(d) If a member is able to generate income that is similar in compensation for a period of three calendar months in six consecutive calendar months, PERS shall initiate a review under the periodic review standard in OAR 459-015-0050.

(2) A member’s disability retirement allowance will be terminated if the member has been medically released for any work for which qualified, whether the member returns to work or not, and PERS will invoice the member for, or recover under ORS 238.715, any overpayment of benefits.

(3) If a member returns to work as provided in sections (1) or (2) of this rule, the member must:

(a) Notify PERS in writing of the reemployment within 30 days of such reemployment; and

(b) Report monthly to PERS the amount of any earned income issued.

(4) PERS may contact other public or private agencies, such as the Oregon Employment Department, the Oregon Department of Revenue, or the U.S. Internal Revenue Service to obtain employment information.

(5) Upon request by PERS, a member must provide PERS with a copy of the member’s federal income tax returns, together with copies of IRS forms W-2.

(6) The Board may require medical examination reports or vocational evaluations for any member receiving a disability retirement allowance who is reemployed.

(7) If the member is reemployed under section (1) of this rule and is unable to continue employment due to the disabling injury or disease as confirmed by medical documentation, the member or employer must notify PERS. If medical documentation substantiates that the disability prevents the completion of the trial period, the disability retirement allowance will be reinstated at the end of the 90 day period, or as of the date the member leaves the trial employment, whichever is sooner.

(8) A disability retirement allowance shall not be discontinued solely by reason of the retired member entering a training or vocational rehabilitation program as defined in OAR 459-015-0001(22).

(9) Restoration of member account after return to work. If a member returns to PERS covered employment after the 90-day trial period, or is medically released at any time for any work for which they are qualified, the disability claim will be closed.

(a) The member’s regular and variable PERS account(s) will be restored to the dollar amount of the account as of the effective date of disability retirement. If a variable account transfer was elected at the time of disability retirement, the amounts transferred from the variable account to the regular account will remain in the regular account.

(b) Earnings crediting will resume as of the first of the month following the last month for which a disability retirement allowance was paid.

(10) Creditable service. A member does not receive creditable service while drawing a disability retirement allowance. If, however, the member returns to PERS covered employment, their disability claim is closed, and they subsequently retire under a service retirement, service time for the period of disability will be restored as follows:

(a) For duty disabilities, creditable service will be granted to the member at no cost to the member.

(b) For non-duty disabilities, creditable service may be purchased by the member under the provisions of ORS 238.175.

Stat. Auth.: ORS 238.650
Stats. Implemented: ORS 238.175, 238.320 – 238.345 & 238.715
Hist.: PERS 2-1992, f. & cert. ef. 1-14-92; PERS 15-2005, f. & cert. ef. 10-3-05; PERS 8-2011, f. & cert. ef. 10-5-11

459-015-0050

Periodic Reviews

(1) Members receiving a disability retirement allowance are subject to periodic reviews of their disabled status until the member reaches normal retirement age or staff determines that periodic reviews are no longer warranted.

(2) Periodic reviews will be used to determine that continued disability retirement allowances are warranted. In recommending the continuance or discontinuance of a disability retirement allowance, PERS will follow the criteria established under OAR 459-015-0005 for the original approved disabling condition or a new medical condition. PERS will also consider the Return to Work provisions of ORS 238.330(3), 238.340, and OAR 459-015-0045.

(3) For duty disability, the periodic review will not revisit the original determination that the injury or disease was duty caused, unless there is evidence of misrepresentation or fraud.

(4) PERS will establish review dates for each member subject to a periodic review depending on type of disability, extent of disability, and medical reports unique to each individual case.

(a) The reviews may be medical or vocational in nature, or both.

(b) Upon review, PERS may accept or require:

(A) New treating or consulting physician or specialist reports;

(B) Updated physician or specialist reports;

(C) Independent medical or vocational examinations; or

(D) Employment and wage information, including but not limited to, tax returns or information from the State Employment Department.

(c) PERS may immediately discontinue the disability retirement allowance of any person who refuses to provide current medical evidence or refuses to submit to an examination.

(A) If the disability claim is discontinued, the staff shall issue an Intent to Discontinue letter by regular and certified mail, return receipt requested. The discontinuation letter shall advise the applicant that additional information to substantiate the claim, or a request for an extension of 30 days to present additional information, may be submitted to the staff in writing within 30 days of the date of the Intent to Discontinue letter.

(B) Following the issuance of an Intent to Discontinue letter, staff will review any additional information which is submitted within 30 days.

(i) If the additional information results in a recommendation to approve the application, staff shall resubmit the application to the Director, or the Director’s designee, with the recommendation.

(ii) If the additional information does not result in a recommendation to approve the application, PERS will issue a final discontinuation letter by regular and certified mail, return receipt requested.

(C) If no additional information is received within 30 days, PERS will issue a final discontinuation letter by regular and certified mail, return receipt requested.

(D) The final discontinuation letter will provide the applicant with notification of the right to request a contested case hearing as provided for in OAR 459-015-0030 and 459-001-0035.

(5) The member has the burden to prove continuing eligibility for a disability retirement allowance.

(6) The Director, or the Director’s designee, may approve or deny the continuance of a disability retirement allowance.

Stat. Auth.: ORS 238.650
Stats. Implemented: ORS 238.320 & 238.335
Hist.: PERS 2-1992, f. & cert. ef. 1-14-92; PERS 5-1992, f. & cert. ef. 5-4-92; PERS 15-2005, f. & cert. ef. 10-3-05; PERS 8-2011, f. & cert. ef. 10-5-11

459-015-0055

Selection of Benefit Option and Commencement of Allowance

(1) Upon filing an application for a disability retirement allowance, the member may make a preliminary designation of beneficiary and a preliminary selection of benefit option. A member may not choose a lump-sum option.

(2) Within 90 days following the Director’s, or the Director’s designee’s, approval of the application for disability retirement allowance, the member must submit a disability benefit application provided by PERS. Receipt of the final forms will supersede any preliminary beneficiary designation or preliminary benefit option.

(a) The final option selected applies only to the corresponding time period the member is receiving a disability retirement allowance.

(b) The beneficiary designation or benefit option may be changed up to 60 days after the date of the first actual (not estimated) benefit payment as provided in ORS 238.325(2). The beneficiary or benefit option change will be retroactive to the effective disability retirement date.

(c) If a member’s disability retirement allowance is canceled before the first benefit payment or is discontinued, the option selected for the purposes of that disability retirement allowance is canceled and a new option may be selected upon a subsequent disability or service retirement.

(3) If the member does not submit a disability benefit application within 90 days following the Director’s, or the Director’s designee’s, approval of the application for disability retirement allowance:

(a) The benefit will be the benefit as set forth under ORS 238.320(1) if the member is single, or the benefit as set forth under ORS 238.462 if the member is married; and

(b) For single members, the latest beneficiary designation on file for the PERS Chapter 238 Program will be used to determine the default beneficiary. If no designation exists, the beneficiary will be as provided for under ORS 238.390(2).

(c) The payment will commence within a reasonable period of time following the 90th day after approval.

(4) Purchases. If a member is eligible to make a purchase to restore creditable service or obtain retirement credit under ORS Chapter 238 or section 2, chapter 971, Oregon Laws 1999, the member must submit payment for the purchase(s) no later than the earlier of:

(a) 90 days following the date of the Director’s, or the Director’s designee’s, approval of the application for disability retirement allowance; or

(b) The date the member submits the final disability benefit application required under section (2) of this rule.

(5) If the member elects to purchase all or a portion of creditable service or retirement credit through a trustee-to-trustee transfer as described in OAR 459-005-0580, the transfer must be received within the time line in section (4) of this rule.

(6) The payment of a disability retirement allowance shall commence within 10 business days following receipt by PERS of all of the items in (a) and (b) of this section, or the date the first payment is due, as set forth in section (7) of this rule, whichever is later:

(a) From the member:

(A) Completed disability benefit application;

(B) Proof of member’s age;

(C) Proof of age for the designated beneficiary if a joint survivor option is elected; and

(D) Certification of marital status form.

(b) From the employer: Financial and demographic information indicating the member has separated from PERS-covered employment.

(7) A disability benefit accrues from the effective date of disability retirement. Except as provided as in section (8) of this rule, the benefit accrued for a month of disability retirement is payable on the first of the following month.

(8) Notwithstanding section (7) of this rule, no payment shall be made before the end of the period of 90 consecutive days beginning with the date of disability and shall be retroactive to the effective date of disability retirement.

(9) If PERS cannot calculate the actual disability benefit payment, an estimated payment will be made until PERS receives all the necessary information needed to calculate the actual benefit payment. The payment will be made retroactive to the effective date of disability if the benefits become due before the 90 consecutive day period of incapacitation has elapsed.

(a) If the estimated payment results in an underpayment of $10 or more a month, the member will receive interest based on the provisions set forth in OAR 459-007-0015.

(b) If the estimated payment results in an overpayment of any amount, the overpayments may be recovered by decreasing the monthly benefit amount until the difference between the amount the member received and the amount the member should have received is recovered.

(10) Minimum disability benefit. A disability benefit will not be less than $100 per month under the non-refund Option 1 benefit or the amount the member would have received for service retirement, if eligible, whichever is higher.

(11) In the event a member applying for a disability retirement allowance dies before the Director’s approval of the application:

(a)(A) If the member has made a preliminary benefit option election, the preliminary election shall be effective upon the Director’s approval of the application for disability retirement.

(B) If the deceased member was eligible to purchase additional creditable service or retirement credit under ORS Chapter 238, the beneficiary, if any, designated in the preliminary election may make the purchase(s) by submitting the required forms and payment within 90 days from the date the disability application is approved.

(b) If the member has not made a preliminary benefit option election, the member will be considered as having died before retirement.

(A) If the beneficiary designated under ORS 238.390(1) is the surviving spouse, the surviving spouse may, within 90 days from the date the disability application is approved, elect to have either Option 2 or 3 disability benefits or pre-retirement death benefits, as provided in 238.390 or 238.395, if eligible.

(i) Regardless of the election made by the surviving spouse under paragraph (b)(A) of this section, all benefits will cease upon the surviving spouse’s death.

(ii) If the deceased member was eligible to purchase additional creditable service or retirement credit under ORS Chapter 238, a surviving spouse who elects disability benefits under paragraph (b)(A) of this section, may make the purchase(s) by submitting the required forms and payment at the time of the election.

(B) If the beneficiary designated under ORS 238.390(1) is not the surviving spouse, the beneficiary will receive pre-retirement death benefits as provided in 238.390 or 238.395, if eligible.

Stat. Auth.: ORS 238.650
Stats. Implemented: ORS 238.320, 238.325 & 238.330
Hist.: PERS 2-1992, f. & cert. ef. 1-14-92; PERS 15-2005, f. & cert. ef. 10-3-05; PERS 6-2008, f. & cert. ef. 4-2-08; PERS 7-2010, f. & cert. ef. 8-2-10; PERS 2-2011, f. & cert. ef. 6-1-11; PERS 12-2014, f. & cert. ef. 7-25-14

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