Disability Retirement Allowances


Published: 2015

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The Oregon Administrative Rules contain OARs filed through November 15, 2015

 

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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) A member cannot apply
for disability retirement before their date of disability.
(5) 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.
(6) When an active member
becomes 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. Total disability must be continuous from
the date of disability to the date the application is filed. If the member becomes
an inactive member, the application must be submitted within the timelines outlined
in section (8) of this rule.
(7)(a) For a member who becomes
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 the earlier of:
(A) The date the member is
medically released for work; or
(B) The date the member returns
to work.
(b) Total disability must
be continuous from the date of disability to the earlier of paragraph (a)(A) or
(B) of this section.
(8) An application by an
inactive member is considered filed in a timely manner when received by PERS as
follows:
(a) For an inactive member
who becomes totally disabled due to injury or disease before the date of separation
from service 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
separation from service. Total disability must be continuous from the date of separation
from service to the date the application is filed.
(b) For an inactive member
who becomes totally disabled due to injury or disease after the date of separation
from service 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.
(9) 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 from service.
(10) 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.
(11) 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. PERS is not a covered entity as defined in 45 CFR Parts 160 and 164,
and 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; PERS 8-2015, f. &
cert. ef. 7-31-15
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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