AGO 1993-036.

Case DateNovember 16, 1993
CourtOhio
Ohio Attorney General Opinions 1993. AGO 1993-036. November 16, 1993OPINION NO. 1993-036The Honorable Thomas E. Ferguson Auditor of State 88 East Broad Street Columbus, Ohio 43266-1140 Dear Auditor Ferguson: You have requested an opinion regarding disability benefits under the Public Employees Retirement System (PERS) or the Police and Firemen's Disability and Pension Fund (PFDPF). Your questions relate to the ability of a member of the system to remain on active pay status while the member's application for a disability benefit is being considered.
Application for a Disability Benefit from PERS
Your first question is whether PERS "may consider a member's application for disability while that member is still being compensated for services performed on behalf of his employer or is still on active pay status." The term "active pay status" means "the conditions under which an employee is eligible to receive pay, and includes, but is not limited to, vacation leave, sick leave, personal leave, bereavement leave, and administrative leave." R.C. 124.382(A)(3) (defined for purposes of R.C. 124.382, .383, .386, .387, .388); see also 2 Ohio Admin. Code 123:1-47-01(A)(2). This term contrasts with "no pay status," which refers to the conditions under which an employee is ineligible to receive pay, including leave without pay, leave of absence, and disability leave. R.C. 124.382(A)(4), (5); see also 2 Ohio Admin. Code 123:1-47-01(A)(31), (48), (51). The procedure for applying for a disability benefit under PERS is prescribed by R.C. 145.35. Application may be made by a member, by a person acting in the member's behalf, or by the member's employer, provided that the member has disability coverage and is not receiving a disability benefit under any other Ohio state or municipal retirement program. See R.C. 145.35(B), (C). With respect to the timing of the filing of the application, R.C. 145.35(C) states:
Application must be made within two years from the date the member's contributing service terminated, unless the [public employees] retirement board determines that the member's medical records demonstrate conclusively that at the time the two-year period expired, the member was physically or mentally incapacitated for duty and unable to make an application.
"Contributing service" means service for which contributions are made to PERS. R.C. 145.01(T). After a member applies for a disability benefit, medical examination of the member is conducted "by a competent disinterested physician or physicians selected by the board to determine whether the member is mentally or physically incapacitated for the performance of duty by a disabling condition either permanent or presumed to be permanent." R.C. 145.35(E). If the physician or physicians determine that the member qualifies for a disability benefit and the Public Employees Retirement Board concurs, the member is entitled to receive a disability benefit:
effective on the first day of the month immediately following the later of the following:
(1) The last day for which compensation was paid;
(2) The attainment of eligibility for a disability benefit.
R.C. 145.35(D). By providing that the disability benefit is effective on the later of the last day for which compensation was paid and the date on which eligibility for a disability benefit was attained, R.C. 145.35(D) clearly contemplates that a member may attain eligibility for a disability benefit prior to the last day for which compensation is paid. It follows that the disability may exist while the member is still employed and engaged in contributing service. See R.C. 145.35(C). The statutes and rules nowhere state that an application for a disability benefit may not be considered if a PERS member is still being compensated for services performed or is still on active pay status, as, for example, on vacation or sick leave. As discussed above, the language of R.C. 145.35(D) indicates that an individual may attain eligibility for a disability benefit prior to the last day for which compensation is paid. It follows that PERS may consider a member's application for a disability benefit while that member is being compensated for services performed on behalf of his employer or is on some form of paid leave, such as vacation or sick leave. The statutes governing application for PERS disability benefits require that an applicant undergo medical examination to establish eligibility for a disability benefit. A disability benefit may be awarded only if the examining physicians and the Board agree that the member is mentally or physically incapacitated for the performance of duty by a disabling condition that is either permanent or presumed to be permanent. R.C. 145.35(E). There is a possibility that an application will be denied. R.C. 145.35; cf. Fair v. School Employees Retirement System, 53 Ohio St. 2d 118, 372 N.E.2d 814 (1978) (the School Employees Retirement Board, rather than the employer, is responsible for determining whether a member of the retirement system is afflicted with a disease or physical impairment that will prevent the person from satisfactorily performing his assigned job duties). If a member continues to work after submitting an application for a disability benefit, the member's capacity to continue to work may be relevant to the factual determination as to whether the member is incapacitated for the performance of duty by a disabling condition. See, e.g., 1990 Op. Att'y Gen. No. 90-002 (State Highway Patrol Retirement System). Compare 20 C.F.R. §404.1520(b) (1993) (for purposes of determining disability under federal social security provisions: "[i]f you are working and the work you are doing is substantial gainful activity, we will find that you are not disabled regardless of your medical condition or your age, education, and work experience"). There is, however, no legal requirement that a...

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