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97-84 ORDINANCE NO. 97-84 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING CHAPTER 18, "PENSIONS AND RETIREMENT", ARTICLE III, "PENSIONS FOR POLICE AND FIRE- MEN", OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, FLORIDA, BY REPEALING SECTION 18-53(1), "MEDICAL BOARD", BY REPEALING SECTION 18-48(5), "DISABILITY", AND ENACTING A NEW SECTION 18-48(5), "DISABILITY RETIREMENT PROVISIONS" TO PROVIDE FOR PROCEDURES, QUALIFICATIONS, AND ELIGIBILITY FOR DISABILITY PENSIONS FOR POLICE OFFI- CERS AND FIREFIGHTERS; PROVIDING A SAVING CLAUSE; PROVIDING AN EFFECTIVE DATE. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That Section 18-53(1), "MEDICAL BOARD", be and the same is hereby repealed. Section 2. That Section 18-48(5), "DISABILITY", be and the same is hereby repealed, and a new Section 18-48(5), "DISABILITY", is hereby enacted to read as follows: , (5) DISABILITY RETIREMENT PROVISIONS. (a) Definition of Disability.' For purposes of this System, total and permanent disability shall mean an injury, disease or condition which permanently incapacitates a Member, either physically or mentally, from his regular and continuous duty as a Police Officer or Firefighter. A total and permanent disability arising directly from the performance of service to the City by a Member as a Police Officer or Firefighter shall be considered to be a Service Incurred Disability. A total and permanent disability arising from any other cause or source, other than as modified below, shall be considered to be a Non-Service Incurred Disability. A Member shall not be entitled to receive a disability retirement benefit from the System if the disability is a result of: 1. Excessive and habitual use of drugs, intoxicants and/or narcotics; 2. Injury or disease sustained by the Member while willfully and illegally participating in fights, riots, civil insurrections or while committing a crime; 3.Injury or disease sustained by a Member while serving in any of the armed forces; 4. Injury or disease sustained by the Member after his employment with the City has been terminated. A Member shall not receive a Service Incurred Disability benefit for injury or disease sustained by the Member while working (either as an employee or through some other contractual arrangement) for anyone other than the City, performing a job func- tion the same as or related to the Member's City job function, and arising out of the scope of such other employment or contractual arrangement, excepting injuries sustained by members while performing duties on behalf of the City and while within the City's jurisdiction although such injuries occurred at an outside employer's job site. In addition, a Member shall not be entitled to receive a disability retirement benefit from the System on the basis of any condition which existed prior to the Member's employment and/or which was evidenced during the Member's preemployment physical. (b) Application for Benefits. In order for the Board to consider a Member's request for disability retirement benefits, the Member must apply in writing to the Board. This application must be made as soon as is practicable following the date when the disability condition arose. Unless extenuating circumstances can be proven to the satisfaction of the Board, an application dated more than six (6) months following the date when the disability condition arose or first became evident or the date where a physician has certified that the applicant has reached maximum medical improvement, whichever is later, shall be grounds for the denial of the application by the Board. Upon receipt of proper application by the Board, the Board shall arrange for a physical examination of the applicant by the medical board. A further condition for receipt of disability retirement benefits from the System is that the applicant must apply for disability benefits from Social Security and Workers' Compensation. Written proof of such application must be submitted to the Board. Failure of the applicant to qualify as being disabled under either the Social Security or Workers' Compensation laws may be considered by the Board in review or recon- sideration by the Board of such Member's disability retirement. (c) Medical Board. When a Member submits proper application for a disability retirement benefit, the Board of Trustees shall designate a medical board to be composed of at least one (1) but not more than three (3) physicians. The choice of physicians shall be made in accordance with the condition or conditions upon which the Member is applying for disability retirement. The medical board shall arrange for and pass upon all medical examinations required under the provisions of this Ordinance, shall investigate all essential statements or certificates made by or on behalf of a Member in connection with an application for dis- ability retirement and shall report in writing to the Board of Trustees its conclusions and recommendations upon all matters referred to it. The payment for such services shall be determined by the Board of Trustees. (d) Determination of Disability. All questions relating to eligibility for initial payment or continuance of disability benefits shall be determined by the Board of Trustees, taking into consideration the recommendations of the medical board and such other evidence of which the Board may avail itself. The general steps which the Board shall follow in its determination shall be as listed below, provided however, that the Board may in its discretion alter or modify these steps: 1. Determine whether the Member's application is proper and timely. 2 ORD. NO. 97-84 % 2. If application is for a Non-Service Incurred Dis- ability, determine whether the ten (10) years of Continuous Service requirement has been met. 3. Based on all evidence submitted to the Board, deter- mine whether the applicant satisfies the definition of disability, including the listed exclusions. 4. Determine whether the disability is to be considered a Service Incurred Disability or a Non-Service Disability, taking into consideration Chapters 175.231 and 185.34, Florida Statutes. 5. Establish a date of disability. This date may be the date of injury causing the disability, the date when the Member could no longer perform his regular and continuous duties, the date when his sick pay and vacation pay are exhausted or such other date as determined by the Board. 6. Prior to Board action, determine whether the Member has reached maximum medical improvement under Workers' Compensation criteria. (e) Dis.ability Retirement Benefits. 1. Eli~ibility. All Members are eligible for Service Incurred Disability Benefits, regardless of their length of Continuous Service. Each Member who completes ten (10) years of Continuous Service prior to becoming disabled shall be eligible for Non-Service Incurred Disability Benefits. 2. Initial Amount of Service Incurred Disability, Benefit. Seventy-five percent (75%) of the Member's' AVerage Monthly Earnings in effect on the date of disability, subject in any event to the offsets listed below. 3. Initial Amount of Non-Service Incurred Disability Benefit. Where elig{ble, two percent (2%) of ~verage Monthly Earnings in effect on the date of disability for each year of Continuous Service, subject in any event to maximum of fifty percent (50%) of such Average Monthly Earnings and subject further to the offsets listed below. 4. Terms of Payments. Disability benefits shall com- mence on or as of the first day of the month coinci- dent with or next following the date of disability, as established by the Board, and shall continue to be paid on the first day of each subsequent month until the death or recovery of the disability retiree. The same survivorship percentages which apply to Normal Retirement Benefits shall also apply to disability retirement benefits. 5. Benefit Offsets. Disability retirement benefits described above shall be reduced by any disability benefits paid by Social Security and/or Workers' Compensation or by other benefit offsets set forth in (g) below. The reduction for Social Security shall be in the amount of the primary insurance amount only, not including any family benefit. Any cost of living adjustments in the disability retiree's Social ORD. NO. 97-84 Security and Workers' Compensation benefits shall not serve to reduce further the disability benefit payable from the System. The reduction for Social Security disability benefits shall terminate upon the retiree's attainment of age sixty-five (65). In the case of a lump sum settlement paid by Workers' Compensation, the disability retirement benefit payable from the System shall be suspended for a certain number of months. The number of months of suspension shall be obtained by dividing the amount of the lump sum settlement by the amount the disability benefit would be if there were no Workers' Compensation offset. Once the number of months of suspension has been completed, the disability retire- ment benefit from the System shall be resumed. Additional benefit adjustments shall also apply as described below in paragraph (g). 6. Eli~biLity for Other Benefits. In the event that a Member applyiri~ f6r ~lisability benefits is also eligi- ble for either Early or Normal Retirement, the Board may, upon the request of the Member, pay the Early or Normal Retirement Benefit instead of a disability retirement benefit. (f) Annual Report by Disability Retiree. Each person cur- rer~tiy' receivin'g disability retirement benefits and each person who first qualifies for disability retirement bene- fits on or after the effective date of this Ordinance shall be required to submit to the Board no later than March 1st of each calendar year a signed and notarized report which includes, but is not limited to, the following infor- mation: 1. A medical report from the disability retiree's physi- cian stating whether the retiree is still incapacitated to perform the regular and continuous duties of a Police Officer or Firefighter. The physician's state- ment must be dated within four (4) months of the March 1st report deadline. 2. A statement showing the amount the disability retiree received in the immediately preceding calendar year from the following sources: a. Social Security (primary insurance amount only, not including family benefits); b. Workers' Compensation (excluding medical reimbursements); and, c. Each employer which paid him any compensation for work performed during the year. Copies of all IRS W-2 Forms shall be required for this purpose. 3. A statement to the effect that the disability retiree understands that if the report is incomplete or incorrect, his disability retirement benefits may be discontinued. In the event that the required annual report is not submitted to the Board on a timely basis, or is incomplete 4 ORD. NO. 97-84 or incorrect, the Board may in its discretion discontinue the disability retirement benefits. (g) Annual Benefit Adjustments. The monthly disability r~tlrement benefit of each person who is receiving benefits on, or who shall receive benefits after, the effective date of this Ordinance, shall be adjusted annually as described herein. First, the sum of the following items shall be calculated for the previous calendar year: 1. The disability retirement benefits paid from the System; 2. The Social Security primary insurance amounts (not including family benefits) less any cost of living adjustments since the benefit first went into effect; 3. The Workers' Compensation disability benefits (excluding medical reimbursements) less any cost of living adjustments since the benefit first went into effect; and, 4. Any earned income (as defined in paragraph (k)) received as evidenced by the IRS W-2 Forms (excluding any sick and vacation pay received from the City pursuant to the disability, as determined by the Board). The annual rate of Earnings of the disability retiree on his date of disability (utilizing the minimum set forth herein) shall then be subtracted from this sum. If there is any excess of the sum over the sum of the disability retiree's pre-disability annual Earnings rate (with a presumed minimum upon the effective date of this ordinance of $30,000) as increased/decreased annually by the City in accordance with the salary funded for comparably funded City positions, then the disability retirement benefit payable from the System shall be reduced. The amount of the annual reduction shall be equal to fifty percent (50%) of any sums up to and including $15,000.00 of the excess, plus one hundred percent (100%) of the excess, if any, which exceeds $15,000.00 in excess of the as-adjusted disability retiree's pre-disability annual Earnings (with a presumed minimum upon the effective date of this ordinance of $30,000). The annual reduction so computed shall then be divided by twelve (12) to make it a monthly reduction. The monthly reduction shall then be subtracted from the monthly disability retirement benefit which has most recently been paid. If the sum of the four items listed above is less than the disability retirement benefit computed in accordance with paragraph (e)(2) or (e)(3) above, as applicable, prior to the offset provided by paragraph (e)(5) above, then the disability retirement benefit payable from the System shall be increased. The amount of the annual increase shall be equal to the amount of the disability retirement benefit computed in accordance with paragraph (e)(2) or (e)(3) above, as applicable, prior to the offset provided by paragraph (e)(5) above, minus the sum of the four items listed above. The annual increase so computed shall then be divided by twelve (12) to make it a monthly increase. The monthly increase shall then be added to the monthly disability retirement benefit which has most recently been 5 ORD. NO. 97-84 paid. The newly adjusted disability retirement benefit shall be paid for the twelve (12) months beginning on the next January lst; provided, however, the disability retiree may petition the Board no more than once annually during said twelve (12) month period for a recomputation of such benefit adjustments, which the Board may elect to consider and grant based upon demonstrated exigent circumstances occurring to said disability retiree subse- quent to the last benefit adjustment. Upon the death of the disability retiree prior to his recovery, the monthly benefit rate without any adjustments shall be used to compute any survivor benefits which are payable from the System. (h) Disability Affidavit. No Member otherwise eligible to receive disability benefits shall be paid such benefits unless and until such Member files a Disability Affidavit with the Board on a form furnished by the Board. By such Disability Affidavit the prospective retiree shall affirm that he is acquainted and familiar with the terms and conditions of his disability retirement. In particular, he shall acknowledge the authority of the Board to require him to undergo periodic future physical examina- tions in order to determine whether he is still disabled. (i) Authority for Reexamination. Each person who first qualifies fo~' or is then receiving disability retirement benefits on or after the effective date of this Ordinance shall be subject to periodic reexamination by a medical board selected by the Board of Trustees to determine if such disability has ceased to exist. Such reexaminations shall not be permitted more often than twice in any calendar year. (j) Recovery from Disability. In the event a Member who has been retired on a disability benefit regains his health and is able to perform his duties in the Police Department or Fire Department, the Board shall discontinue the pension; and further, the City shall, subject to budget and quali- fication of the Member for the position, offer said Member a position with the City as a police officer or firefighter. If such Member shall resume his employment with the City, as a police officer or firefighter, then he may pay into the Fund an amount equal to the aggregate contribu- tions plus interest at a rate to be determine by the Board (computed upon his annual Earnings at the time of his disability retirement) he would have been required to make hereunder, as determined by the Board, during the period of his disability retirement had he not been retired, such Member shall receive creditable service for the period of such disability retirement. In any event, such Member shall retain credit for the period of Con- tinuous Service prior to the date of disability. (k) Earned Income. For purposes of this section, '~earned income~ shall mean all wages, salaries, tips, and other employee compensation received by the member, plus the amount of the member's net earnings from self-employment for any tax year. Section 3. That should any section or provision of this ordinance or any portion thereof; any paragraph, sentence, or word be declared by a court of competent 6 ORD. NO. 9'7-84 jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part declared to be invalid. Section 4. That this ordinance shall become effective ten (10) days after its passage on second and final reading and the provisions set forth herein shall be appli- cable to all current and future members of the plan, including members now receiving or who have applied for disability retirement benefits (except that these applicants and members receiving disability benefits shall not be subject to the provisions set forth in sections 18-48(5)(a), 18-48(5)(b), and 18-48(5)(d), as well as the earned income benefit offsets otherwise provided for herein). PASSED AND ADOPTED in regular session on second and final reading on this the 15th day of January , 198 5. MAYOR ATTEST: First Reading. December 11, 1984 Second Reading. January 15, 1985 7 ORD. NO. 97-84