OAR 459-015-0005: Eligibility for Disability Retirement Allowances

(1) Eligibility Standards: (a) A member who was employed as other than a police officer or firefighter must be totally, not partially, disabled and unable to perform any work for which qualified for an extended duration to be eligible for a disability retirement allowance. (b) A member who was last employed as a police officer or firefighter as defined in ORS 238.005 must be unable to perform the work the member performed at the time the member became disabled for an extended duration to be eligible for a disability retirement allowance. (A) This standard applies to members applying for disability retirement benefits who were last employed in a qualifying position as a police officer or firefighter. (B) This standard is applicable for duty and non-duty disability retirement applications under ORS 238.320. (C) For members who are concurrently employed by two or more employers in qualifying positions as a police officer or firefighter and as other than a police officer or firefighter, the “work performed at the time the member became disabled” standard is the standard to be used in determining eligibility. The standard applies to the qualifying position worked as a police officer or firefighter member. (2) In determining a member’s eligibility for a disability retirement allowance, the burden of proof is upon the applicant. The Board is not required to prove whether the applicant is or is not eligible for a disability retirement allowance. (3) Eligibility requirements for duty disabilities. (a) To be eligible for a duty disability a member must prove: (A) The mental or physical incapacitation arose out of and in the course of duty and was not intentionally self-inflicted; and (B) The incapacitation must be the material contributing cause of the disability even if the member has a pre-existing condition. (b) For work related stress to be considered the material contributing cause of the incapacitation all of the following criteria must be met: (A) The employment conditions producing the work-related stress exist in a real and objective sense; (B) The employment conditions producing the work-related stress are conditions other than conditions generally inherent in every working situation or reasonable disciplinary, corrective or job performance evaluation actions by the employer, or cessation of employment or employment decisions attendant upon ordinary business or financial cycles; (C) There is a diagnosis of a mental or emotional disorder which is generally recognized in the medical or psychological community; and (D) There is evidence that the work-related stress arose out of and in the course of employment. (c) If a member has been approved for a disability retirement benefit under ORS 238.320 and has also been approved for benefits under ORS Chapter 656 for the same injury or disease, when making the duty designation determination: (A) PERS will consider it a rebuttable presumption that the member is eligible for duty disability; (B) The presumption in (A) will be: (i) Rebuttable with clear and convincing evidence; (ii) Applicable to any payments made on or after the later of: (I) January 1 of the year in which the documentation of the approval of benefits under ORS Chapter 656 has been received by PERS or (II) Effective date of disability retirement; (C) The member is responsible for submitting documentation of approval for benefits under ORS Chapter 656 to PERS. (4) Eligibility requirements for non-duty disabilities. A member applying for non-duty disability retirement must have a minimum of 10 years of employment in a PERS qualifying position. Years of employment are calculated pursuant to ORS 238.320(6) as follows: (a) Members with no prior service credit under ORS 238.442 receive: (A) One year of employment for each 12-month period or major fraction thereof, calculated from the date on which the member begins the six-month waiting period required for establishing membership under ORS 238.015 to the date of disability; and (B) Up to 90 days for sick leave used after the date of disability. No other leave of absence after the date of disability will count toward years of employment. (b) Members with prior service credit under ORS 238.442 receive: (A) One year of employment for each year of prior service credit; and (B) One year of employment for any minor fraction of a year of prior service, if continuous as certified by the employer and for which no prior service credit was granted; and (C) One year of employment for each 12-month period or major fraction thereof, calculated from the date on which membership is established in the system to the date of disability; and (D) Up to 90 days for sick leave used after the date of disability. No other leave of absence after the date of disability will county toward years of employment. (5) A member’s disability retirement allowance shall be calculated based on: (a) Creditable service; and (b) Granted service if the member had not attained: (A) Age 55 if the last qualifying position was as a police officer or a firefighter. (B) Age 58 if the last qualifying position was as other than a police officer or firefighter. (6) Granted service is: (a) Not included in the calculation of increased benefits payable under ORS 238.364. (b) Included in the calculation of increased benefits payable under ORS 238.366. (7) Termination of membership. Disability retirement allowances are available only to PERS members. Former PERS members who have terminated their membership pursuant to ORS 238.095 are not eligible to receive PERS disability retirement allowances.