43:16-2 - Retirement for disability
43:16-2. Retirement for disability
Any member of such police or paid or part-paid fire department who shall have received permanent disability as a direct result of a traumatic event occurring while performing his regular or assigned duties shall be retired upon an accidental disability pension equal to 2/3 of his average salary if an application for such retirement is filed by such member or by his employer within 5 years after the date of such traumatic event or the commission may consider an application filed after the 5-year period if it can be factually demonstrated to the satisfaction of the commission that the disability is due to the accident and the filing was not accomplished within the 5-year period due to a delayed manifestation of the disability or other circumstances beyond the control of the member.
A member of any such department who shall have served honorably and who shall have become permanently and totally incapacitated for service for any cause other than as a direct result of a traumatic event occurring during the performance of duty, shall, upon approval of his application, or the application of his employer, be retired on a nonaccident disability pension equal to 1/2 of his average salary. Permanent and total disability resulting from a cardiovascular, pulmonary or musculo-skeletal condition which was not a direct result of a traumatic event occurring in the performance of duty shall be deemed a nonaccident disability.
A member of any such department seeking to retire on an accident disability or nonaccident disability pension shall make application to the commission in writing; or the commission may, upon application of the employer, cite any such member of any such department before it to examine such member concerning his alleged disability and in either case the commission shall call to its assistance the aid of a surgeon or physician, and the member may likewise call to his aid a regularly licensed and practicing physician or surgeon; but no member shall be so retired unless the official physician of the local police or fire department, as the case may be, with which the person to be retired is connected, shall certify to the commission that such member has the disability by reason of which the retirement is sought. The chairman of the commission is authorized to administer oaths to such physicians or surgeons or any other person called with respect to the matter before the commission. If the 2 physicians or surgeons so called fail to agree upon the physical or mental condition of the member, the commission may call a third and disinterested, licensed and practicing physician or surgeon, and the determination of a majority of such surgeons or physicians, after they shall have been duly sworn in the case, shall be reduced to writing and signed by them. The determination shall specify whether or not such member is permanently disabled from performing his usual duty and any other available duty in the department which his employer is willing to assign to him and whether or not his permanent disability is a direct result of a traumatic event occurring during the performance of his duty. The commission shall determine by resolution whether the member is fit for the performance of his usual duty or such other duty in his department which his employer is willing to assign to him and if it is determined that he is unfit for such duty or there is no available duty which he could perform then he shall be entitled to the benefits of this subtitle. In determining whether the member should be retired on a disability pension, the commission shall consider the physicians' or surgeons' determination in arriving at its decision.
The commission shall require any member who is less than 51 years of age and who shall have been retired on an accident disability or nonaccident disability pension to submit to a physical examination twice a year for a period of 3 years and once a year thereafter in order to determine whether or not the disability which existed at the time that he was retired still exists. Such examination shall be made in accordance with the same procedure in the instance of the examination made by virtue of a member's application for retirement for disability. If the physicians or surgeons or a majority of them report that the member is able to perform either his former usual duties, if such be available, or such other available duties in the department which his employer shall assign to him, the pensioner shall report for such duty within 10 days after receipt of notice of the commission's determination thereon, and be reinstated to duty at the salary prevailing for the position at the time of his reinstatement and thereupon his pension payments shall cease. If the pensioner fails to submit to a medical examination or fails to return to duty within 10 days after receiving either request or within such further time as may be allowed by the commission for valid reason, his pension payments shall be discontinued during such default. Any pensioner who may be of the opinion that he has recovered from the disability which existed at the time of his retirement may request and be granted an examination by the commission at any time and if it be found by the physicians or surgeons or a majority of them that he be fit for his usual duty or any other available duty in the department which his employer is willing to assign to him and the commission concurs therein then he shall be reinstated thereto, if such be available, at the salary prevailing for the position at the time of his reinstatement and thereupon his pension payments shall cease.
Amended by L.1944, c. 253, p. 820, s. 2; L.1946, c. 284, p. 967, s. 1; L.1947, c. 234, p. 898, s. 2; L.1952, c. 358, p. 1150, s. 2; L.1959, c. 159, p. 630, s. 1; L.1964, c. 242, s. 2, eff. Jan. 1, 1965.