§ 12-50. Disability.

(a)

A member shall be disabled under the terms of the plan if the member has suffered an illness, injury or disease which renders the member permanently and totally incapacitated, physically or mentally, from regular and continuous duty as a firefighter as determined by the board. Disability shall not be determined based solely on the fact that a member cannot perform all of the duties of his or her job grouping as set forth in the job description. The city shall be required to accommodate disabled workers in accordance with state and federal law.

(b)

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

(c)

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

(d)

The service-incurred disability benefit for a firefighter shall be paid in equal monthly installments in an amount equal to fifty-two and one-half (52.5) per cent of the member's final monthly compensation as of the date of disability retirement, together with any additional accrued benefits in excess of fifty-two and one-half (52.5) per cent which have been earned by the member as the result of additional service.

(e)

The non-service incurred disability benefit shall be paid on the same basis as normal retirement in an amount equal to the member's accrued benefit to date of disability, but shall be not less than thirty (30) per cent of final monthly compensation. For the purposes of a non-service incurred disability benefit, final monthly compensation shall be determined as of the last day the member was actively at work for the city.

(f)

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

(g)

Disability retirement income shall continue until the death of the member or recovery from disability as determined by the board. An employee on disability retirement may, upon reaching normal retirement age, elect to convert the disability retirement to a service retirement. In the case of such an election, the member may receive credited service for the years during which the member was disabled by contributing to the retirement plan the monies the employee would have contributed had the employee remained continuously in service. In the case of such an election, average compensation shall be based upon salary being paid to member at the time of disability. In the event of the death of a member who is retired on a disability benefit, and has not received payments equal to one hundred twenty (120) in number, the remaining unpaid benefits shall be paid to a designated beneficiary selected by the member and communicated to the board on the form prescribed by the board. In the event that there is no designated beneficiary, the remaining unpaid benefits shall be paid to the estate of the deceased member. A member may elect a reduced joint and survivor benefit.

(h)

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

(i)

Upon finding that a member is no longer disabled, the member may apply to return to work for the city at the same rank, pay level and position previously occupied. If member is re-employed, he or she shall again become an active member of the plan but shall receive no credited service for any period of time in which the member was receiving disability benefits. If the member declines re-employment within the city, the member shall be deemed to have terminated employment on the date that the disability benefit commenced.

(j)

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

(k)

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

(l)

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

(m)

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

(n)

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

(1)

Excessive and habitual use of drugs, intoxicants or narcotics;

(2)

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

(3)

Injury or disease sustained by the firefighter while serving in any armed forces;

(4)

Injury or disease sustained by the firefighter after his or her employment has terminated.

(o)

A disabled member may choose any of the optional forms of retirement income.

(Ord. No. 2003-101, § 2(Art. X), 3-4-03; Ord. No. 2008-122, § 6, 12-16-08; Ord. No. 2008-123, § 2, 1-6-09)