Effective January 7, 2013, the Ohio Legislature enacted new provisions affecting the rights of members of the Ohio Public Employees Retirement System (OPERS) seeking a disability retirement, as well as the continuing eligibility considerations of those members who have already been granted a disability retirement.

Below are some of the important changes made by Substitute Senate Bill 343 to the OPERS law:

1. New standard to determine eligibility for a disability retirement:

The member must be mentally or physically incapable of performing the duties of the position the member held at the time the disabling condition began, "or of a position with similar duties." R.C. 145.35(E). This is a departure from the previous version, which only required the member be incapable of performing the essential job duties of the member's "own occupation."

2. New injury/illness requirement:

"The coverage shall extend only to illness or injury that occurs before the member's contributing service terminates, or in the case of illness or injury that results from contributing service, becomes evident not later than two years after the date the contributing service ends. The coverage shall not extend to disability resulting from elective cosmetic surgery other than reconstructive surgery." R.C. 145.35(B). Previously, a member could apply for a disability retirement as long as the application was filed within two (2) years of the member's last contribution into OPERS.

3. New leave of absence standard:

A member who has been granted a disability retirement after the effective date of the amendment is considered to be on a leave of absence for a period of three (3) years. R.C. 145.362. The old standard was five (5) years. There is an exception to the three (3) year leave of absence: "*** if the member is receiving rehabilitative services acceptable to a physician or physicians selected by the [OPERS] board, the board may permit the recipient to retain membership status and be considered on leave of absence from employment for up to five years following the effective date of a disability benefit." The leave of absence period is significant because, if the member's disability resolves, or if OPERS terminates a disability retirement, the member is allowed to return to his/her former position of employment, but only as long as the leave of absence has not expired.

4. New offset provision when the member also receives Social Security Disability:

"*** [I]f any year the total of a disability benefit recipient's benefit under this chapter and social security disability insurance benefit payment exceeds the recipient's adjusted final average salary, the annual benefit under this chaper shall be reduced so that the annual total equals the recipient's adjusted final average salary." R.C.145.363. However, this provision does NOT apply to law enforcement members.

5. New standard for termination of disability retirement benefits:

For any member who submits an application for disability retirement after January 4, 2013, the standard for the initial determination of disability is as set forth above in item 1. Members who have been granted a disability retirement after January 4, 2013, and members who have been receiving a disability retirement for three (3) years or longer, will now be subject to an evaluation whether the member can not only return to his former position of employment (i.e. the member's "own occupation" from which retirement was originally granted), but also whether the member can return to "any other occupation." Specifically, the new law provides as follows:

"Regardless of when the disability occurred, if the recipient's application for a disability benefit is received by the system on or after the effective date of this amendment, the recipient has been receiving the benefit for three years or longer, the recipient was not a PERS law enforcement officer when the disability occurred, and the recipient is not receiving rehabilitative services acceptable to the physician or physicians, the standard for termination is that the recipient is not physically or mentally incapable of performing the duties of any position that meets all of the following criteria:

"(1) Replaces not less than seventy-five percent of the member's final average salary ***;"

"(2) Is reasonably to be found in the member's regional job market;"

"(3) is one that the member is qualified for by experience or education."

R.C. 145.362(B). This new provision does NOT apply to law enforcement officers. See R.C. 145.01(VV) for the definition of "law enforcement officer."

6. New definition of final average salary:

A member's "final average salary" is changed from the member's highest three (3) years to the member's highest five (5) years.

If you have any questions about the new OPERS law, or need legal representation in pursuing a disability retirement application, or in defending against an effort by OPERS to terminate your disability retirement, please call us today. There are time limits that may jeopardize your case, so please do not delay. 614-221-1300.

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