AGO 1993-072.

• Case Date: December 22, 1993
• Court: Ohio

Ohio Attorney General Opinions 1993. AGO 1993-072. December 22, 1993OPINION NO. 1993-072Henry E. Helling, III Executive Director Police and Firemen's Disability and Pension Fund230 East Town Street Columbus, Ohio 43215-4650 Dear Executive Director Helling: You have requested an opinion on various disability retirement issues affecting the Police and Firemen's Disability and Pension Fund (PFDPF). Your specific questions are as follows: 1.

Can a PFDPF member receiving permanent and total disability benefits under R.C. 742.37(C)(2) be employed in any position for which he receives compensation?

2.

Does the Board of Trustees have the authority to revoke a permanent and total disability grant if an individual becomes employed in a position for which he is compensated?

3.

Does the Board have the authority to reduce a grant of permanent and total disability to a partial disability under R.C. 742.37 if there is a change in the level of disability?

If so, can the Board restore the permanent and total disability grant at a future date if there is a subsequent change in the level of disability?

4 .

Can a PFDPF member continue to receive a partial disability benefit if he becomes re-employed in a non-police or fire position?

5.

Can a PFDPF member continue to receive a partial disability benefit if he or she becomes re-employed in a law enforcement or fire fighting position which is covered by another retirement system, and is not included within the definition of a member of a police department or a member of a fire department under R.C. 742.01(A) and (B)?

6.

Is there a limit on the amount of earnings a re-employed partial disability retirant can receive, and does the Board have the authority to require the retirant to substantiate post-retirement income?

7.

Is the fact that an individual did not receive income during a given period prima facie evidence that his other earning capacity is impaired?

8.

Does the Board have the authority to reduce a grant of a partial disability benefit if there is a change in the member's earning capacity and/or level of disability?

The Board of Trustees of PFDPF Has Only the Authority That It Is Granted by Statute

The Police and Firemen's Disability and Pension Fund was created pursuant to R.C. 742.02 for the purpose of providing disability benefits and pensions to members of the fund and their surviving spouses, children, and dependent parents. The administration, control, and management of the fund is vested in the Board of Trustees of PFDPF. R.C. 742.03; see, e.g., R.C. 742.06-.07, .10-.11. The PFDPF is a creature of statute and "has no authority beyond that which is expressly or impliedly conferred by statute." Dreger v. Public Employees Retirement System, 34 Ohio St. 3d 17, 20-21, 516 N.E.2d 214, 217 (1987). As was stated in State ex rel. Henderson v. Schuele:

The state board [Board of Trustees of PFDPF] is a creature of statute. Its powers and its duties are established by statute. It can exercise no power or discretion not invested in it by statute. Consequently, it has only the duties imposed upon it by statute....It can do no more and no less.

25 Ohio St. 2d 179, 182, 267 N.E.2d 590, 592 (1971). The Board of Trustees of PFDPF is directed by statute to "adopt rules for the management of the fund and for the disbursement of benefits and pensions as set forth in [R.C. 742.37]." R.C. 742.37. While the board has adopted various rules, see 3 Ohio Admin. Code Chapters 742-1 to -19, those rules do not directly address the issues considered in this opinion. Further inquiries have disclosed no established guidelines, policies, or other written documents of PFDPF relating to such matters.

Permanent and Total Disability Benefits

R.C. 742.37(C)(2) provides for permanent and total disability benefits to be granted to PFDPF members as follows:

A member of the fund who is permanently and totally disabled as the result of the performance of his official duties as a member of a police or fire department shall be paid annual disability benefits until death, payable in twelve monthly installments, in an amount equal to seventy-two per cent of his annual salary for the last year he was in the active service of such police or fire department. (Emphasis added.)

The relevant definitions(fn1) of "total disability" and "permanent disability" appear in R.C. 742.01 in these words:

(F) "Total disability" means inability to perform the duties of any gainful occupation for which the member of the fund is reasonably fitted by training, experience, and accomplishments, provided that absolute helplessness is not a prerequisite of total disability.

(G) "Permanent disability" means a condition of disability with respect to which the board of trustees of the police and firemen's disability and pension fund finds there is no present indication of recovery. For purposes of making such a determination, the board shall consider and base its findings on all competent evidence, including medical testimony, opinions, and statements, made available to it.

A PFDPF Member Who Receives Permanent and Total Disability Benefits May Not Be Employed as a Member of a Police or Fire Department But May Have Other Employment

Your first question is whether a PFDPF member receiving permanent and total disability benefits under R.C. 742.37(C)(2) may be employed in any position for which he receives compensation. It is clear that an individual may not continue to receive a permanent and total disability benefit from PFDPF if the individual is reemployed as a member of a police department or fire department as defined in R.C. 742.01(A) and (B).(fn2) On this point, R.C. 742.22 states expressly that a PFDPF member's disability benefits "shall be terminated on the first day following restoration to active duty" as a member of a police or fire department.(fn3) It should, however, be noted that a part-time employee of a police or fire department is not a "member" of the department as defined in R.C. 742.37(A) and (B). See note 2, supra; see also, e.g., Dreger v. Public Employees Retirement System. Statutes governing other public retirement systems provide for the forfeiture of disability benefits for limited time periods if a PFDPF disability benefit recipient is employed within those time periods. For example, R.C. 145.38 provides that a PFDPF retirant who has received his disability benefit for less than two months when employed by a public employer under the Public Employees Retirement System (PERS) must forfeit his disability benefit until the two-month period expires. See also R.C. 3307.381 (similar provisions under the State Teachers Retirement System (STRS)); R.C. 3309.341 (similar provisions under the Public School Employees Retirement System (SERS)). It is clear that an individual who receives permanent and total disability benefits under R.C. 742.37(C)(2) will be subject to these periods of forfeiture if he accepts employment under another public retirement system. Apart from the periods of forfeiture imposed by other public retirement systems and the prohibition of R.C. 742.22 against receiving disability benefits while serving as a member of a police or fire department, no statutes prohibit the recipient of permanent and total disability benefits under R.C. 742.37(C)(2) from accepting employment for compensation. Compare, e.g., 1947 Ohio Laws 614, 617, 622, 627 (providing under prior law -- G.C. 4612-4, G.C. 4615-9, and G.C. 4628 -- that a firefighter or police officer could not receive pension or disability payments "while he is holding an elective or appointive full time salaried office or position in the service of the state or any political subdivision thereof"); 1949 Op. Att'y Gen. No. 746, p. 409; 1948 Op. Att'y Gen. No. 2641, p. 32. It must, therefore, be concluded that such employment is permissible, provided that other relevant statutory requirements are met. This conclusion is consistent with R.C. 742.01(F), which specifies that absolute helplessness is not a prerequisite of total disability. See also Kinsey v. Board of Trustees of PFDPF, 49 Ohio St. 3d 224, 227, 551 N.E.2d 989, 993 (1990) ("determining that appellant is qualified to do some kind of work, such as sedentary or nonstressful work, does not necessarily mean that he is not totally disabled for purposes of [PFDPF]. Instead, in order to determine that appellant is not 'totally disabled' within the meaning of R.C. 742.01(F), there must be 'some evidence' in the record that the gainful occupation he can now engage in, after his disability, is an occupation for which he is reasonably fitted by way of training, experience, and accomplishments"), mandamus granted, 76 Ohio App. 3d 763, 603 N.E.2d 356 (Franklin County 1991); State ex rel. Kidd. v. Board of Trustees of PFDPF, 66 Ohio App. 3d 647, 585 N.E.2d 930 (Franklin County 1991), mandamus granted, No. 93AP-200 (Ct. App. Franklin County Sept. 28, 1993). It does, however, seem paradoxical to suggest that an individual who is permanently and totally disabled may be able to perform a job of any sort, and that anomaly is discussed in connection with your next two questions.

The Board of Trustees of PFDPF Has Authority to Revoke a Grant of Permanent and Total Disability Benefits if the Recipient Becomes Employed as a Member of a Police or Fire Department, But Not If the Recipient Accepts Other Employment

The second question is whether the Board of Trustees of...