Section 8: Evaluation and reexamination of members retired for disability
Section 8. (1) Evaluations and Reexamination of Members:—
(a) The commission shall require, after consultation with the local board, any member retired for disability under the provisions of sections six and seven to participate in an evaluation to determine whether the member is able to perform the essential duties of the position from which he retired or a similar job within the same department for which he is qualified without a medical or vocational rehabilitation program, or whether such member's return to his former or similar job within the same department would likely be expedited by participation in a medical or vocational rehabilitation program. Such evaluation shall occur once per year during the first two year period next succeeding the date of his retirement, once in each three year period thereafter, and at any time upon the written request by any such member; provided, however, that an initial evaluation shall occur as soon as possible after October first, nineteen hundred and ninety-six for any member who has been retired for more than two years and has not participated previously in such an evaluation; and provided, further, that such evaluations shall occur not more frequently than once in any twelve month period. Such evaluations shall include mental or physical medical examinations, vocational testing, meetings, and consultations with medical professionals, including the member's treating physician and vocational rehabilitation counselors, which are necessary to determine whether the disability for which the member was retired continues to render the member unable to perform the essential duties of his job; provided, however, that the commission may excuse a member from such examination if the commission determines based on written findings that such examination is unwarranted based on the catastrophic nature of the member's illness or injury. If such member shall refuse without good cause to submit to any evaluation, his rights in and to the pension provided for in section six and seven shall promptly be terminated by the board; provided, however, that the member shall first be given written notice and an opportunity to be heard by the board with respect to such termination. Said member may appeal such termination to the contributory retirement appeals board.
If, following the evaluation, the commission determines that such retired member may benefit from such a rehabilitation program and that such a program is cost effective, the board shall provide such rehabilitation program for such member and shall pay the costs of the program less any benefits payable under insurance policies of the member for such programs and less any scholarships or grants otherwise available for such programs. Such rehabilitation program shall include only such services as shall appear on a list of services approved by the commission. Any such member who is unreasonably denied access to such program may appeal such denial to the contributory retirement appeals board. If the retired member fails to complete the program without good cause, said member's rights in and to the pension provided for in section six and seven shall immediately be suspended. Said member may appeal his suspension to the contributory retirement appeals board.
Upon the completion of the rehabilitation program the board shall require the member to submit to a mental or physical examination, pursuant to paragraph (b); provided, however, that if said board believes that an examination is unwarranted, said board shall file a statement of fact with the commission, stating the reasons why the examination is unwarranted. If the commission rejects this statement, the board shall conduct the examination. The examination required pursuant to this section shall, at a minimum, determine the scope of the member's physical capabilities in light of the completed rehabilitation program and whether the member is able to perform the essential duties of his job or the essential duties of a similar job within the same department given the member's condition. If such member shall fail to appear at any such required examination without good cause, all his rights in and to the retirement allowance provided for in section six or seven shall be terminated by the board; provided, however, that the member shall be given written notice and an opportunity to be heard prior to such termination. Said member may appeal such termination to the contributory retirement appeals board.
(b) For the purpose of mental or physical examinations under this section, the commission may appoint either a single physician or a three member regional panel to examine the retired member.
(2) Restoration to service in same governmental unit; (a) If, within two years of the date that a member is retired under section 6 or 7, a regional medical panel determines that the retired member is able to perform the essential duties of the position from which he retired, if following the completion of a rehabilitation program required under subdivision (1), a regional medical panel so finds, the member shall be returned to such position and his disability retirement shall be revoked; provided, however, that if the retired member is able to perform the essential duties of a similar job within the same department for which he is qualified, as determined by the department of personnel administration, and such position is vacant, said member shall return to such position; provided, further, that if such position is not vacant, then the last person appointed to that rank or position will be reduced in rank or position and shall be placed at the top of the list to fill such rank or position for a two year period.
If, after two years of the date that a member is retired under section 6 or 7, the regional medical panel determines that the retired member is qualified for and able to perform the essential duties of the position from which he retired or a similar position within the same department, as determined by the personnel administrator, said member shall be returned to said position, provided the position is vacant. If the position has been filled, the member shall be granted a preference for the next available position or similar position for which he is so qualified. When under the provisions of this section, no vacancy exists in the same or similar position he shall continue to receive such retirement allowance until such reinstatement takes place or as a result of the submission of earnings information under section 91A which may require his pension to be reduced or revoked.
(b) Upon return to work, he shall again become a member in service and regular deductions shall again be made from his regular compensation. Any creditable service in effect for him at the time of his retirement for disability shall thereupon be restored to full force and effect, and upon his subsequent retirement he shall be entitled to a normal yearly amount of retirement allowance computed as though such disability retirement and reinstatement had not taken place. No additional member contributions shall be required as a precondition of receiving such creditable service.
(c) The board shall, upon the written request of such retired member after his pension has been reduced, revoked or suspended as provided for in this section, cause him to again be examined by either a single physician or a three member regional medical panel as determined by the commission; provided, however, that such retired member shall not be re-examined if such member had been examined by such single physician or regional medical panel within the previous twelve months. If such medical report is to the effect that the mental or physical condition of such member has deteriorated, the board may increase or restore his pension as the report may warrant.
(d) Nothing in this section shall excuse an employer or a member returned to work under the provisions of this section from compliance with the provisions of section one hundred and three of chapter ninety-three, paragraph sixteen of section four of chapter one hundred and fifty-one B, of the Americans with Disabilities Act, 42 USC § 12101 et seq., or of any other state or federal law concerning persons with disabilities.
(3) Modifications of retirement allowance. If as a result of such medical report by a regional medical panel, as a result of the submission of earnings information under section ninety-one A, or as the result of the completion of a rehabilitation program as provided for under subdivision (1), or under subdivision (5) of section twenty-one, the commission finds that such retired member is engaged or is able to engage in gainful occupation and that the annual rate of his actual or potential earnings is less than his regular compensation as defined in this subdivision, but is more than the difference between such regular compensation plus the sum of five thousand dollars, and the normal yearly amount of his retirement allowance, then the yearly amount of his pension shall be reduced, and if his actual or potential earnings are more than such regular compensation, his pension shall be suspended. Notwithstanding any other provisions of this section, if such member submits earnings information pursuant to section ninety-one A, indicating earnings in excess of regular compensation, as therein described, such member's pension shall be reduced as provided for in this subdivision and shall not be increased for a period of one year unless such medical report finds that the mental or physical condition of such member has deteriorated. If the annual rate of his earnings should later be changed, the yearly amount of his pension shall be further modified by reinstating, increasing, reducing, or suspending it, as the case may be. For purposes of this subdivision, regular compensation means, subject to further definition by regulations of the public employee retirement administration commission, regular compensation which would have been payable during the preceding year had the member continued in service in the grade held by him at the time he was retired. The public employee retirement administration commission shall, subject to the provisions of section fifty of chapter seven, promulgate regulations establishing, and providing a system for annually adjusting for inflation and such other equitable factors as the commission deems relevant, the fair amount of outside income that may be earned by a member retired pursuant to section six or seven, and shall promulgate regulations for the determination of the potential earnings of any such retired member based upon such member's functional capacity, age, education, and experience. Any such modification may be appealed by the member to the contributory retirement appeals board.