Disability Retirement Issues
Disability Retirement: From Start to Finish
By: Rebecca L. Smith
PLEASE NOTE: THIS ARTICLE WAS INTENDED FOR MARYLAND STATE TROOPERS. NOT ALL CONCEPTS AND POINTS OF LAW ARE THE SAME FOR OTHER LAW ENFORCEMENT OFFICERS. THIS IS NOT LEGAL ADVICE. PLEASE CONTACT US FOR ADVICE SPECIFIC TO YOUR SITUATION.
It goes without saying that being a Trooper is a dangerous job and that injuries can happen in the blink of an eye. And, unfortunately, a Trooper never knows when an injury will be severe enough to end a career. Disability retirement is an option for all Troopers following injury. However, it is important to know the process and things to look out for along the way while recovering to ensure that if an injury is career-ending, you have the best opportunity to ensure that you receive the benefits you are entitled to.
Initial Injury and Medical Treatment
When an injury occurs at work, Troopers will first go through treatment and the workers’ compensation process. This involves seeing specialists who can best diagnose problems and note all injuries sustained. Most Troopers who have workers’ compensation claims are represented through the process. Most attorneys who handle workers’ compensation claims may not be familiar with the disability retirement process through the State.
When an application for disability retirement is filed with the State Retirement and Pension System (SRPS), SRPS looks at all of the treatment records related to the injury, as well as any records from prior to the injury. One of the main reasons that Troopers are denied special disability retirement benefits is because the medical records from the treatment the Trooper received do not document objective findings along with subjective complaints. Objective findings are verifiable medical evidence of an injury that includes, but is not limited to, range of motion, atrophy, muscle strength, and palpable muscle spasm. Subjective complaints are related to the symptoms that are felt, such as pain.
It is important after an injury that the Trooper sees specialists who document all objective findings and subjective complaints. All too often, medical providers fail to document objective findings in the medical records. In this situation, it is nearly impossible to later argue that objective findings existed. Troopers should speak to their workers’ compensation attorneys to ensure that all objective findings and complaints are listed in all of the medical records. Workers’ comp and disability retirement cases are reviewed differently, so what may be “good enough” for workers’ comp, will not be sufficient for SRPS.
Another reason that disability retirement benefits could be denied is if there is a pre-existing condition or prior injury. It is imperative that if there is a pre-existing condition or injury, that the treating doctor addresses how, if at all, the current injury effected that condition. If the treating doctor lists that a Trooper has degenerative disc disease, but fails to mention that it was asymptomatic prior to the work injury, that could cause concerns later when an application for disability retirement is filed.
After treatment is complete, if a Trooper is working full, unrestricted duty, the chances of being successful in a disability retirement claim are slim. By definition, a Trooper must be permanently and totally disabled from performing the 31 essential job functions. A Trooper who is working without restrictions does not meet that definition. If a Trooper is in a unit or of a rank where it is not as physically demanding and, thus, does not need to be on restricted duty to perform their duties, it does not matter because every Trooper must be able to perform the 31 functions at any time. Thus, if a Trooper is unable to perform the 31 functions of a trooper, no matter if those are functions done daily, the Trooper should be on restricted duty.
FOR MARYLAND TROOPERS: Who Can File and When?
Applications for disability retirement can be filed by a current member of the State Police Retirement System, a former member (only if filed within 24 months of membership ending and it can be proven that the failure to file was related to the disability), or a beneficiary of a deceased member. This means that retirees are not eligible for file for disability retirement benefits. Applications for disability retirement benefits must be filed before retirement.
Ordinary Disability Retirement v. Special Disability Retirement
When an application for disability retirement is filed, SRPS reviews the application for both ordinary and special disability retirement benefits. Ordinary disability retirement benefits are awarded if the member is incapacitated from further performance of normal duties and the incapacity is likely to be permanent. In order to be eligible for ordinary disability retirement benefits, the Trooper must have at least 5 years of eligible service. Ordinary disability retirement allowances equals the greater of a normal service retirement allowance or 35% of the member’s average final compensation.
Special disability retirement benefits are awarded if the Trooper is totally and permanently incapacitated for the further performance of duty without willful negligence and the disability arose out of or in the course of employment with the Maryland State Police. Special disability retirement benefits can be awarded regardless of eligible service time. Unless the Trooper is of normal retirement age, special disability retirement allowances equals the lesser of the member’s final average final compensation or the sum of a pension equal to two-thirds of the member’s average final compensation plus an annuity that is the actuarial equivalent of the member’s accumulated contributions at retirement.
Filing for Disability Retirement
When an application for disability retirement is filed with SRPS, the treating physician must first complete the Physician’s Report. The treating doctor should list accurate and complete diagnoses and prognosis on this form to ensure accurate processing of the application. Once the Physician’s Report is complete, the Trooper should complete the remainder of the application with the assistance of counsel. The application is then sent to the Medical Services Unit at the Maryland State Police. At that time, the MSP will complete its portion of the application and send the application to SRPS. The initial application should include all of the medical records from the treating physicians and all workers’ compensation awards and filings. The MSP will also send the MSP medical file, leave usage, and disciplinary record to SRPS for consideration.
Once SRPS receives the initial application and verifies that all forms are completed and submitted, the file is sent to the Medical Board to review. The Medical Board is comprised of physicians who review the documentation submitted. The Medical Board usually requests that the Trooper be seen for an Independent Medical Evaluation (IME). The Medical Board can make the following determinations: 1. More information is needed; 2. Send for an IME; 3. Delay processing of the application to allow the Trooper more time to seek treatment; 4. Deny disability retirement; 5. Grant ordinary disability retirement but deny special disability retirement; 6. Grant special disability retirement benefits. Once the Medical Board makes a decision on whether to deny or grant disability retirement benefits, that decision must be approved by the Board of Trustees.
If SRPS denies special disability retirement benefits, but grants ordinary disability retirement benefits, the Trooper must accept the ordinary disability retirement and can seek reconsideration of the denial of special disability retirement benefits. The MSP will not allow a Trooper to return to work if there is any certification by SRPS that there is a permanent disability that prevents the Trooper from working. If SRPS denies both ordinary and special disability retirement benefits, the Trooper can seek reconsideration of the denial. The Trooper must seek reconsideration with 30 days from the decision from SRPS. During the reconsideration process, SRPS may request additional medical records and the applicant can provide any other relevant medical evidence for SRPS’s consideration. The Medical Board will review any new information to make a decision on whether the denial should be reconsidered.
Appeal to Office of Administrative Hearings
If SRPS denies the application at the reconsideration phase, the Trooper can appeal the denial to the Office of Administrative Hearings within 30 days of the decision from SRPS. At the OAH, both parties present expert testimony to support its respective positions on whether disability retirement benefits should be granted. Effective November 24, 2016, the OAH now issues a final decision as to whether disability retirement benefits are awarded. The Board of Trustees no longer has the final approval of the award of benefits.
The difference between ordinary disability retirement and special disability retirement is substantial in terms of monetary benefits. Thus, it is important to ensure that from the date of injury and throughout the process, the Trooper seeks appropriate medical care and has proper medical documentation to support claims. Disability retirement cases start when injuries occur, even if that is not the first thought following injury. It is important to have competent legal counsel in both the workers’ compensation claim and the disability retirement claim to ensure that the process for disability retirement is as comprehensive and efficient as possible so that denials do not occur.