OPSRP DISABILITY BENEFIT
The words and phrases used in this division have the same meaning given them in ORS Chapter 238A and OAR 459-070-0001. 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 disability benefits:
(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 a disability benefit is filed” means the receipt date as determined pursuant to OAR 459-005-0220.
(5) “Date of disability” means the date an active member ceased to work because of inability to perform any work for which qualified due to injury or disease.
(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” includes, but is not limited to:
(a) Salary or wages received as an employee;
(b) Self-employment income from:
(A) Services industry;
(C) Assembly or manufacturing;
(E) Property management;
(F) Hobby income; or
(G) Book advances.
(c) “Earned income” does not include:
(A) Investment income;
(B) Rent; and
(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 benefit” means the first day of the month following the date of disability, in which:
(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) “Independent medical exam” means an exam or exams conducted by a physician chosen by PERS for purposes other than for treatment which results in the issuance of a report or reports based on those exams, giving an opinion regarding the claimed injury or disease.
(12) “Material contributing cause” means the efficient, dominant, and proximate cause of the disability, without which the member would not be disabled.
(13) “Monthly salary” means salary as defined in ORS 238A.005 that is earned in the last full calendar month of employment and includes a differential wage payment, as defined in OAR 459-005-0001.
(a) Retroactive payments or payments made due to clerical errors, paid in accordance with ORS 238A.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.
(14) “Monthly salary received” means the greater of the 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.
(15) “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.
(16) “Periodic review” means a review of a member receiving a disability benefit to determine whether or not a continued benefit is warranted.
(17) “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.
(18) “Pre-existing condition” means a condition that was not sustained in actual performance of duty in a qualifying position with a participating employer.
(19) “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.
(20) “Total disability” means the inability to perform any work for which qualified for an extended duration due to physical or mental incapacitation.
(21) “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.
(22) “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.
Stats. Implemented: ORS 238A.235
Hist.: PERS 16-2005, f. & cert. ef. 10-3-05; PERS 7-2007, f. & cert. ef. 4-4-07; PERS 1-2009, f. & cert. ef. 2-12-09; PERS 8-2011, f. & cert. ef. 10-5-11
Eligibility for Disability Benefits
(1) An active 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 benefit.
(2) A member with disabilities arising after the member’s date of termination from a qualifying position(s) is not eligible for a disability benefit.
(3) In determining a member’s eligibility for disability benefits, the burden of proof is upon the applicant. The Board is not required to prove whether the applicant is or is not eligible for disability benefits.
(4) 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.
(5) Eligibility requirements for non-duty disabilities. A member applying for non-duty disability benefit must meet the 10 or more years of service requirements pursuant to ORS 238A.235(2)(a) or (b).
(6) Termination of OPSRP membership. Disability benefits are available only to active OPSRP Pension Program members. Former OPSRP Pension Program members who have terminated membership pursuant to ORS 238A.110 are not eligible to receive OPSRP disability benefit.
(7) Return to work. If a member who is receiving a disability benefit becomes employed or receives earned income, the member’s disability benefit will be terminated, effective the first of the month following employment or issuance of earned income. PERS will invoice the member for, or recover under ORS 238.715, any overpayment of benefits.
(8) 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.
(9) 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.
Stat. Auth.: ORS 238A.120 &
Stats. Implemented: ORS 238A.140 & 238A.235
Hist.: PERS 16-2005, f. & cert. ef. 10-3-05; PERS 11-2011, f. & cert. ef. 11-23-11
Criteria for Granting and Denying Disability Benefits
(1) Medical documentation is required by PERS. Each disability benefit 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) The Board may deny any application or discontinue any disability benefit in the case of any person who refuses to submit to any medical examination or supply a completed application or review form.
(3) 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.
(4) In addition, a disability benefit 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 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 or neurosurgeon;
(c) For claims of neurological or neurosurgical injury or disease, at least one report of 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 PERS deems necessary.
(5) To demonstrate that he or she is unable to perform any work for which qualified, as defined in OAR 459-076-0001(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 459-076-0001(2).
(c) The inability of the applicant to perform the duties of his or her last job, in itself, does not satisfy the criterion.
(6) 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.
(7) The Board may deny any application or discontinue any disability benefit if an applicant refuses to submit to an independent medical or vocational examination.
Stat. Auth.: ORS 238A.450
Stats. Implemented: ORS 238A.235
Hist.: PERS 16-2005, f. & cert. ef. 10-3-05
(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 member’s eligibility for a disability benefit.
(2) No disability benefit will be paid unless the member files a timely and complete application with PERS.
(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) A member must file a timely application for disability benefits:
(a) An active member may file the 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, and:
(A) The application 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.
(b) An inactive member who was totally disabled due to injury or disease while the applicant was an active member and has not terminated membership, must file an application for a disability benefit within five calendar years of the date of separation from service. Total disability must have arisen while the applicant was an active member and be continuous from the date the member last worked to the date the application is filed.
(c) A member cannot apply for disability benefits before their date of disability.
(5) In determining the effective date of a disability benefit 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 from service.
(6) Upon the filing of an application for a disability benefit, 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.
(7) When making application for a PERS disability benefit, 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.
(8) When filing an application for disability benefit, if the applicant wishes to authorize release and disclosure of protected health information, as defined in OAR 459-076-0001, 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 CFR 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 benefit may be affected.
Stat. Auth.: ORS
Stats. Implemented: ORS 238A.235
Hist.: PERS 16-2005, f. & cert. ef. 10-3-05; PERS 7-2007, f. & cert. ef. 4-4-07; PERS 8-2011, f. & cert. ef. 10-5-11; PERS 11-2012, f. & cert. ef. 8-31-12
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 will inform the applicant in writing and postmarked not less than 10 days before a scheduled examination, of the identity of the physician(s) selected to examine 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 will be compensated at the rate applicable to travel by unrepresented state employees on state business. Transportation by taxi, bus, rail, or other public carrier will be paid only upon presentation of receipts from the providers. Lodging and subsistence will be allowed only when a stop-over is necessary and will 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 PERS because of a member’s failure to meet a scheduled appointment.
(3) In the event a member fails to meet a scheduled examination 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 will 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 benefit, 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 benefit application. Upon receipt and review of all necessary documentation, staff will present applicant’s claim to the Director, or the Director’s designee, with a recommendation to approve or to deny a disability benefit. 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 disability claim is approved, the staff will notify the applicant and the applicant’s employer of such approval.
(b) If the disability claim is denied, the staff will issue an Intent to Deny letter by regular and certified mail, return receipt requested. The Intent to Deny letter will 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.
(5) Following the issuance of an Intent to Deny letter, staff will review any additional information 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 will resubmit the application to the Director 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) A contested case hearing on the denial of disability benefits shall be conducted according to OAR 459-015-0030, 459-015-0035, and 459-015-0040.
(8) PERS will notify the most recent employer of the approval or the denial of an application for a disability benefit, 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 459-076-0001(3).
Stats. Implemented: ORS 238A.235
Hist.: PERS 16-2005, f. & cert. ef. 10-3-05; PERS 8-2011, f. & cert. ef. 10-5-11
Cessation of Disability Benefits Upon Reaching Normal Retirement Age
(1) If a member who is receiving an OPSRP disability benefit reaches normal retirement age, as defined in OAR 459-076-0001(11), disability benefits will cease as of the first of the following month.
(2) The disability benefit will not automatically convert to a retirement benefit upon the member reaching normal retirement age. The member must apply for service retirement benefits before receiving them. In order to receive a service retirement benefit beginning in the month in which a disability benefit ceases under section (1) above, the member must:
(a) Complete the applicable Service Retirement application(s); and
(b) Submit the application(s) to PERS at least 92 days before the first of the month in which the disability benefit ceases under section (1). In no case will a service retirement benefit become payable during a month in which a member receives a disability benefit or earlier than the first of the month in which an application was submitted.
(3) The OPSRP retirement pension benefit will be based on:
(a) The adjusted salary as set forth in section (4) of this rule; and
(b) The total retirement credit accrued, set forth in section (5) of this rule.
(4) The salary the member was receiving immediately prior to leaving active employment as a result of disability will be adjusted for the cost-of-living for each year after the member left employment and before the member's effective date of service retirement.
(a) Cost-of-living adjustments will be based on the Portland-Salem, OR-WA CPI and may not exceed a two percent increase or decrease for any year.
(b) Cost-of-living adjustments will be made only for calendar years in which the member received an OPSRP disability benefit for at least six months during a calendar year.
(5) Retirement credit. A member receiving OPSRP disability benefits will accrued retirement credit, as well as hours of service credit toward vesting, for the entire period of disability until:
(a) The member is no longer disabled; or
(b) The member reaches normal retirement age.
(6) The retirement credit will accrue under the same employment classification in which the member was immediately employed prior to becoming disabled.
(7) A member who is receiving disability benefits who reaches normal retirement age and has not applied for a service retirement will become an inactive member on the first of the month following the month in which they reach normal retirement age.
Stat. Auth.: ORS 238A.450
Stats. Implemented: ORS 238A.155 & 238A.235
Hist.: PERS 16-2005, f. & cert. ef. 10-3-05
(1) Members receiving a disability benefit 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 benefits are warranted. In recommending the continuance or discontinuance of a disability benefit, PERS will follow the criteria established under OAR 459-076-0005 for the original approved disabling condition or a new medical condition. If a member receiving a disability benefit becomes employed, the member’s disability benefit will be terminated as provided in OAR 459-076-0005.
(3) For a 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 benefit 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 benefit.
(6) The Director, or Director’s designee, may approve or deny the continuance of a disability benefit.
Stats. Implemented: ORS 23A8.235
Hist.: PERS 16-2005, f. & cert. ef. 10-3-05; PERS 7-2007, f. & cert. ef. 4-4-07; PERS 8-2011, f. & cert. ef. 10-5-11
Payment of Disability Benefit
(1) A disability benefit accrues from the effective date of disability benefit.
(2) Notwithstanding section (1) of this rule, disability payments may not begin until a period of extended duration following the date of disability has been completed.
(3) 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.
(a) If the estimated payment results in an underpayment of $10 or more a month, the member will receive interest under the provisions of 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.
(4) If a member applying for a disability benefit dies before the Director’s approval of the application the application will be considered cancelled effective on the date of the member’s death.
(5) If a member receiving disability payments dies before retiring, the disability benefit will cease the first of the month following the member’s date of death.
Stats. Implemented: ORS 238A.235
Hist.: PERS 16-2005, f. & cert. ef. 10-3-05; PERS 8-2011, f. & cert. ef. 10-5-11