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.