Chapter 415-105 WAC

Last Update: 8/3/99

LOCAL DISABILITY BOARD PROCEDURES

WAC Sections

GENERAL PROVISIONS
415-105-010Preamble.
415-105-020Purpose.
415-105-030Board doctor.
415-105-040Disability leave.
415-105-050Examination, review and determination.
415-105-060Granting disability retirement.
415-105-070Decision and order.
415-105-072Burden of proof to cancel disability allowance.
415-105-074Determination to cancel disability allowance.
415-105-080Notice of denial of benefits and right to appeal.
415-105-090Reexamination after retirement.
CESSATION OF DISABILITY
415-105-100Purpose—Age fifty and older.
415-105-110Application to disability board—Age fifty and older.
415-105-120Burden of proof in disability board proceedings.
415-105-130Standard for determination.
415-105-140Examination by board physician.
415-105-150Disability board order.
CESSATION OF DISABILITY WHILE UNDER AGE FIFTY
415-105-160Purpose—Under age fifty.
415-105-170Application to the disability board—Under age fifty.
415-105-180Disability board hearing and order.


415-105-010
Preamble.

These rules are not intended to weaken the authority of the local disability board nor to prevent the disability board from adopting additional rules or procedures necessary for performing its duties.
[Statutory Authority: RCW 41.50.050. WSR 99-16-075, § 415-105-010, filed 8/3/99, effective 9/3/99. Statutory Authority: RCW 41.26.115. WSR 81-23-032 (Order 81-03), § 415-105-010, filed 11/16/81.]



415-105-020
Purpose.

These rules are adopted under the authority of section 1, chapter 294, Laws of 1981 (RCW 41.26.115) to provide a basis for uniform administration of disability retirement matters. These rules must be followed by each disability board.
[Statutory Authority: RCW 41.50.050. WSR 99-16-075, § 415-105-020, filed 8/3/99, effective 9/3/99. Statutory Authority: RCW 41.26.115. WSR 81-23-032 (Order 81-03), § 415-105-020, filed 11/16/81.]



415-105-030
Board doctor.

(1) Each board must appoint a board doctor. The board must not approve a disability retirement without prior examination of the applicant by the board doctor or a specialist selected by the board doctor. The board doctor must be a practicing physician licensed under the provisions of chapter 18.71 RCW; or, if the board doctor practices outside the state of Washington, then he/she must be a physician licensed by the state in which he/she practices.
(2) The board doctor and any selected specialist must be knowledgeable about the normal, routine duties, functions and general demands of the position the applicant held at the time the applicant discontinued service.
(3) The board must furnish the examining physician with the applicant's job and/or position description. The board must inform the physician that the board's decision to grant or deny a disability retirement allowance is to be measured against the actual, normal, routine duties that the applicant performs.
(4) The board doctor or approved specialist will provide medical services requested by the board including examinations pursuant to RCW 41.26.120(1); 41.26.125(1); 41.26.130(5); and 41.26.150 (1)(a).
[Statutory Authority: RCW 41.50.050. WSR 99-16-075, § 415-105-030, filed 8/3/99, effective 9/3/99. Statutory Authority: RCW 41.26.115. WSR 81-23-032 (Order 81-03), § 415-105-030, filed 11/16/81.]



415-105-040
Disability leave.

(1) The applicant must prove the existence of:
(a) A disabling condition; and
(b) Whether or not the condition was incurred in the line of duty.
(2) The application must include the name of each physician contacted by the applicant within the last six months for the disabling illness or injury. The applicant must advise each examining physician that:
(a) The board has requested the evaluation;
(b) Any reports of the evaluation will be reviewed by the board;
(c) That the doctor-patient privilege may not be invoked with respect to the evaluation; and
(d) The physician may be requested by the board to testify as to his or her findings.
(3) The disability board is authorized to demand the appearance of the applicant and to request the appearance of any other persons it deems appropriate.
(4) Following receipt of an application for disability benefits, the board must:
(a) Review the application and all relevant information about the applicant's fitness for duty;
(b) Consider the duties of the applicant's position; and
(c) Consider any other pertinent evidence.
The board must either grant or deny disability leave based on the evidence or continue the matter pending receipt of additional information.
(5) If the information before the board is insufficient to determine whether or not the applicant is disabled, the matter can be continued to the next regular meeting or set for consideration at a special meeting. The board must advise the applicant of:
(a) The additional information needed;
(b) The applicant's obligation to provide the additional information; and
(c) The date by which the information must be provided.
(6) The applicant may waive any or all of the disability leave granted pursuant to RCW 41.26.120(4) and 41.26.125(4).
(7) The board is not to use the minimum medical and health standards (MMHS) to determine whether or not an applicant is unfit for duty. The MMHS established pursuant to RCW 41.26.046 govern entry or reentry into LEOFF System membership and were provided only to safeguard the fiscal integrity of the pension system.
[Statutory Authority: RCW 41.50.050. WSR 99-16-075, § 415-105-040, filed 8/3/99, effective 9/3/99. Statutory Authority: RCW 41.26.115. WSR 81-23-032 (Order 81-03), § 415-105-040, filed 11/16/81.]



415-105-050
Examination, review and determination.

(1) The board must have the applicant examined during the fifth or sixth month of disability leave. The examination is to be performed by the board doctor or a specialist selected by the board doctor. The board shall not approve the disability retirement without this examination unless:
(a) The applicant establishes that the disabling condition will exist for at least six months; and
(b) The applicant voluntarily waives disability leave.
(2) Following receipt of the examination report, the board must:
(a) Review the medical evidence and all relevant information about the applicant's fitness for duty;
(b) Consider the duties of the applicant's position; and
(c) Consider any other pertinent evidence.
The board must either grant or deny disability retirement based on the evidence or return the applicant to duty for a reasonable period of trial service.
(3) If the board cannot determine with reasonable certainty whether or not the applicant is disabled, the board may issue a written order that the applicant is to return to duty for a reasonable period of trial service to determine the applicant's fitness for active duty.
(a) The length of the trial service period must be supported by medical evidence.
(b) During the period of trial service the applicant is to return to the same duties in the same position held at the time of discontinuance of service.
(c) If the applicant is found to be disabled, the board is not to grant a second six-month period of disability leave, but is to return the applicant to disability leave status for the remainder, if any, of the initial six-month leave period.
[Statutory Authority: RCW 41.50.050. WSR 99-16-075, § 415-105-050, filed 8/3/99, effective 9/3/99. Statutory Authority: RCW 41.26.115. WSR 87-07-015 (Order 87-3), § 415-105-050, filed 3/11/87; WSR 81-23-032 (Order 81-03), § 415-105-050, filed 11/16/81.]



415-105-060
Granting disability retirement.

(1) The applicant is required to prove that he or she is disabled and unable to perform with average efficiency the duties of the position held at the time of discontinuance of service.
(2) The board must determine, based on the evidence, that the applicant is disabled from performing his or her duties and the disability has been continuous since the beginning of the disability leave period.
(3) The board may make a finding of six months continuous disability prior to the actual conclusion of the six-month period if:
(a) The regular meeting of the board does not precede the end of the six-month disability leave period by more than forty days; and
(b) Medical evidence shows the disability is expected to continue through the full six-month period.
(4) The applicant is not entitled to a disability retirement allowance if:
(a) The employer advises the board that there is an available position for which the applicant is qualified and to which a person of the same grade or rank is normally assigned; and
(b) The board determines that the applicant is capable of discharging the duties of the position with average efficiency.
[Statutory Authority: RCW 41.50.050. WSR 99-16-075, § 415-105-060, filed 8/3/99, effective 9/3/99. Statutory Authority: RCW 41.26.115. WSR 87-07-015 (Order 87-3), § 415-105-060, filed 3/11/87; WSR 81-23-032 (Order 81-03), § 415-105-060, filed 11/16/81.]



415-105-070
Decision and order.

(1) After granting or denying a disability retirement allowance, the board must enter a written decision and order that includes:
(a) Appropriate findings of fact supported by credible evidence sufficient to sustain the decision; and
(b) Conclusions of law.
(2) When a disability retirement allowance is granted, the decision and order and all supporting documentation must be sent to the director of the department of retirement systems.
(a) The accompanying findings of fact shall include at least the following:
(i) The applicant's length of service with the employer and the position held at discontinuance of service;
(ii) The names of the examining physicians and the dates of the examinations;
(iii) The nature of the disability;
(iv) Whether or not the disability was incurred in the line of duty;
(v) Whether or not the disability was incurred in other employment;
(vi) Dates encompassing disability leave;
(vii) Dates related to authorized return to duty on a trial basis and the factual basis for the decision; and
(viii) Dates encompassing waiver of disability leave, if applicable, and that applicant established that the disability will be continuous for at least six months.
(b) The supporting documentation shall include a copy of at least the following:
(i) The application for disability benefits showing the applicant's current mailing address;
(ii) The job description accurately reflecting the duties of the position the applicant held at discontinuance of service;
(iii) Employer statement(s), if any, relevant to the applicant's position and/or fitness for duty;
(iv) All medical and other evidence considered by the board; and
(v) The minutes and/or transcript of all meetings at which the applicant's disability status was considered.
[Statutory Authority: RCW 41.50.050. WSR 99-16-075, § 415-105-070, filed 8/3/99, effective 9/3/99. Statutory Authority: RCW 41.26.115. WSR 87-07-015 (Order 87-3), § 415-105-070, filed 3/11/87; WSR 81-23-032 (Order 81-03), § 415-105-070, filed 11/16/81.]



415-105-072
Burden of proof to cancel disability allowance.

The disability board has the burden of proof in any proceeding to cancel a disability retirement allowance.
[Statutory Authority: RCW 41.50.050. WSR 99-16-075, § 415-105-072, filed 8/3/99, effective 9/3/99.]



415-105-074
Determination to cancel disability allowance.

The board need not rely solely on medical evidence in making its determination. To cancel a disability retirement allowance, the board must demonstrate that:
(1) The retiree is reasonably able to perform the ordinary duties of his or her former position or a position within the retiree's former rank with average efficiency; and
(2) There has been a material change in the circumstances upon which the retirement was based; and
(3) No other physical or mental disability now prevents the retiree from performing the ordinary duties of his or her position or rank.
The board may not cancel a disability retirement allowance based on a determination that the medical condition was incorrectly diagnosed at the time of the initial disability hearing. If the medical condition for which the retiree was granted disability retirement has improved, but the retiree is still not physically or mentally able to perform his or her duties with average efficiency, the retiree shall continue to receive the disability retirement allowance. The board must send a copy of all determinations and the examination reports and other evidence on which they are based to the department of retirement systems.
[Statutory Authority: RCW 41.50.050. WSR 99-16-075, § 415-105-074, filed 8/3/99, effective 9/3/99.]



415-105-080
Notice of denial of benefits and right to appeal.

(1) The board must immediately notify the applicant if the board:
(a) Denies disability leave or retirement; or
(b) Cancels a previously granted disability leave or retirement.
(2) The board must advise the applicant of his or her right to appeal the board's decision to the director of the department of retirement systems pursuant to RCW 41.26.200.
(3) Notification and advice must be in writing and served by personal service or mail unless the applicant or the applicant's authorized representative attends the meeting and is advised in person of the board's decision and the applicant's right to appeal.
[Statutory Authority: RCW 41.50.050. WSR 99-16-075, § 415-105-080, filed 8/3/99, effective 9/3/99. Statutory Authority: RCW 41.26.115. WSR 81-23-032 (Order 81-03), § 415-105-080, filed 11/16/81.]



415-105-090
Reexamination after retirement.

(1) Every retiree under 49.5 years of age must be medically reexamined every six months by the board doctor or approved physician, except as provided in subsection (4) of this section.
(2) The retirement allowance of any retiree who fails to submit to a medical examination as required in subsection (1) of this section shall be discontinued until the retiree complies with the reexamination requirement. If the retiree continues for one year to refuse to undergo reexamination, the board shall cancel his or her retirement allowance.
(3) If the retiree resides more than one hundred miles from his or her former employer, the board may authorize the retiree to be examined by a physician in the retiree's local area. The board must approve the local area physician and provide him or her with information about the purpose of the examination and the issues to be addressed in the physician's report to the board.
(4) If the board doctor or approved physician finds that no possibility exists for the retiree's recovery and return to duty, the board may determine that subsequent medical examinations are not required. The determination may be made at the time of retirement or at any time thereafter, but must be based on a current (within ninety days) recommendation of the examining physician. The board must notify the department of retirement systems when it makes a determination of permanent disability. A copy of the physician's report must accompany the notice.
(5) If the examination shows that the retiree is fit to perform the duties of the rank or position held at retirement, the retiree shall be entitled to a hearing before the board. The notification and hearing shall comply with the requirements of the Administrative Procedure Act, chapter 34.05 RCW. Unless the retiree waives his or her right to the hearing, the board must hold the hearing before it can cancel the disability retirement allowance.
[Statutory Authority: RCW 41.50.050. WSR 99-16-075, § 415-105-090, filed 8/3/99, effective 9/3/99. Statutory Authority: RCW 41.26.115. WSR 87-07-015 (Order 87-3), § 415-105-090, filed 3/11/87; WSR 81-23-032 (Order 81-03), § 415-105-090, filed 11/16/81.]



415-105-100
Purpose—Age fifty and older.

These rules are adopted under RCW 41.26.115 to implement the provisions of RCW 41.26.130(3) and 41.26.135 and establish procedures to be followed by the applicant and the disability board. These rules apply only to a disability retiree age fifty and older who seeks a determination that his/her disability has ceased.
[Statutory Authority: RCW 41.50.050. WSR 99-16-075, § 415-105-100, filed 8/3/99, effective 9/3/99. Statutory Authority: RCW 41.26.115. WSR 87-07-015 (Order 87-3), § 415-105-100, filed 3/11/87.]



415-105-110
Application to disability board—Age fifty and older.

(1) When a disability retiree over age fifty believes that his/her disability has ceased, he/she may make application to cancel the disability retirement allowance. Such application shall be made to the disability board that originally considered the application for disability retirement.
(2) The application must be in writing and contain the following information:
(a) The retiree's name, birthdate, Social Security number, mailing address, telephone number, former LEOFF employer, and the name and mailing address of the retiree's legal representative, if any;
(b) The nature of the disability and the date the disability ceased;
(c) The names, addresses and telephone numbers of all physicians and other health care practitioners who have been contacted by the retiree or his/her representative in the last year for medical care, consultation or evaluation;
(3) The application must be accompanied by the following documents:
(a) Copies of any written documents supporting the retiree's claim that his/her disability has ceased and that no other physical or mental disability now prevents the retiree from performing the ordinary duties of his/her position or rank;
(b) A copy of the local disability board order granting disability retirement if the original disability board order was summarily affirmed by the director or the LEOFF retirement board; or
(c) A copy of the director's order or the LEOFF retirement board's order if the director or the LEOFF retirement board entered the final order granting disability retirement.
[Statutory Authority: RCW 41.50.050. WSR 99-16-075, § 415-105-110, filed 8/3/99, effective 9/3/99. Statutory Authority: RCW 41.26.115. WSR 87-07-015 (Order 87-3), § 415-105-110, filed 3/11/87.]



415-105-120
Burden of proof in disability board proceedings.

The retiree has the burden of proof in the proceedings before the disability board.
[Statutory Authority: RCW 41.50.050. WSR 99-16-075, § 415-105-120, filed 8/3/99, effective 9/3/99. Statutory Authority: RCW 41.26.115. WSR 87-07-015 (Order 87-3), § 415-105-120, filed 3/11/87.]



415-105-130
Standard for determination.

To obtain a determination that a disability has ceased, the retiree must demonstrate that:
(1) He/she is reasonably able to perform the ordinary duties of his/her former position or position within his/her former rank with average efficiency; and
(2) There has been a material change in the circumstances upon which the original disability determination was based; and
(3) No other physical or mental disability now prevents the retiree from performing the ordinary duties of his/her position or rank.
A retiree may not obtain a determination that his/her disability has ceased by demonstrating that the medical condition was incorrectly diagnosed at the time of the initial disability hearing. The disability board need not rely solely on medical evidence in making its determination. If the medical condition for which the retiree was granted disability retirement has improved, but the retiree is still not physically or mentally able to perform his/her duties with average efficiency, he/she shall continue to receive a disability retirement allowance and shall not be entitled to service retirement.
[Statutory Authority: RCW 41.26.115. WSR 87-07-015 (Order 87-3), § 415-105-130, filed 3/11/87.]



415-105-140
Examination by board physician.

(1) Before acting on an application, the disability board shall have the retiree examined by the board doctor as provided in WAC 415-105-030. If the board doctor has seen the retiree before in any capacity except evaluation on behalf of the disability board, the board doctor must refer the retiree to another physician who has not seen the retiree in any capacity except evaluation on behalf of the disability board.
(2) Before the retiree is examined, the disability board must furnish the board doctor or other physician with a current job description for the rank or position held by the member at the time he/she was granted disability retirement and a copy of these regulations.
(3) The board doctor or other physician will examine the retiree to determine if he/she is able to perform with average efficiency the duties of the rank or position held by the retiree at the time of discontinuance of service and that he/she meets the requirements of WAC 415-105-130.
[Statutory Authority: RCW 41.50.050. WSR 99-16-075, § 415-105-140, filed 8/3/99, effective 9/3/99. Statutory Authority: RCW 41.26.115. WSR 87-07-015 (Order 87-3), § 415-105-140, filed 3/11/87.]



415-105-150
Disability board order.

(1) The board must review the application, the medical evaluation by the board doctor, and any other relevant evidence. The board must determine whether the retiree has met the standards set out in WAC 415-105-130 and is physically and mentally capable of performing his/her duties with average efficiency.
(2) If the board determines that the retiree's disability has ceased, it shall enter its written decision and order including appropriate findings of fact and conclusions of law. The disability board must:
(a) Enter a decision which specifies the date the disability retirement allowance will cease;
(b) Immediately send a copy of the decision and order to the department of retirement systems.
[Statutory Authority: RCW 41.50.050. WSR 99-16-075, § 415-105-150, filed 8/3/99, effective 9/3/99. Statutory Authority: RCW 41.26.115. WSR 87-07-015 (Order 87-3), § 415-105-150, filed 3/11/87.]



415-105-160
Purpose—Under age fifty.

These rules are adopted under RCW 41.26.115 to implement the provisions of RCW 41.26.130(3) and establish procedures to be followed by the applicant and the disability board in cases in which the applicant is under age fifty and believes that his/her disability has ceased.
[Statutory Authority: RCW 41.50.050. WSR 99-16-075, § 415-105-160, filed 8/3/99, effective 9/3/99. Statutory Authority: RCW 41.26.115. WSR 87-07-015 (Order 87-3), § 415-105-160, filed 3/11/87.]



415-105-170
Application to the disability board—Under age fifty.

A disability retiree under age fifty who believes that his/her disability has ceased may apply for a determination that the disability has ceased. The application must be:
(a) Made to the disability board which originally found the member to be disabled; and
(b) In writing; and
(c) Contain the information stated in WAC 415-105-110(2).
Thereafter, the rules and procedures stated in WAC 415-105-120 through 415-105-140 shall be in effect.
[Statutory Authority: RCW 41.50.050. WSR 99-16-075, § 415-105-170, filed 8/3/99, effective 9/3/99. Statutory Authority: RCW 41.26.115. WSR 87-07-015 (Order 87-3), § 415-105-170, filed 3/11/87.]



415-105-180
Disability board hearing and order.

(1) The board must review the application, the medical evaluation of the board doctor, and any other relevant evidence. The board must then determine whether the retiree has met the standards set out in WAC 415-105-130 and is physically and mentally capable of performing his/her duties with average efficiency. If the board determines that the retiree's disability has ceased, both the retiree and the former employer shall be entitled to a notice and a hearing. Both the notice and the hearing shall comply with the requirements of chapter 34.05 RCW.
(2) After the hearing, the board must enter its written decision and order, including appropriate findings of fact and conclusions of law. The board order must either deny the retiree's application or cancel his/her disability retirement allowance and restore him/her to duty pursuant to RCW 41.26.140(2).
(3) Any person aggrieved by a determination or order of a disability board that the applicant's disability has not ceased may file an appeal with the director pursuant to RCW 41.26.140(6).
[Statutory Authority: RCW 41.50.050. WSR 99-16-075, § 415-105-180, filed 8/3/99, effective 9/3/99. Statutory Authority: RCW 41.26.115. WSR 87-07-015 (Order 87-3), § 415-105-180, filed 3/11/87.]