LEOFF Plan 1 Local Disability Board Guidelines
Any member who believes he or she is physically or mentally disabled may apply for disability retirement. Although applications filed with a disability board are sometimes designated as applications for disability leave, they are at all times applications for disability retirement. (See AGLO 1975 No. 84.) If the member is so disabled that he or she cannot complete and file the application, someone acting in the member's behalf may apply. In either case, the application must be filed within one year from and after the member's discontinuance of service. (See RCW 41.26.120 and .125.)
It is the applicant's responsibility to:
- prove the existence of a disabling condition;
- prove whether the condition was or was not incurred in the line of duty; and
- provide the name(s) of any physician(s) contacted for the disabling condition within the prior six months.
(See WAC 415-105-040.)
Discontinuance of Service
Sick leave or vacation leave and disability leave are mutually exclusive; a person cannot be on sick leave or vacation leave and disability leave at the same time.
An applicant who is on sick leave or vacation leave is still in service because the member is receiving salary. On the other hand, an applicant who has been granted disability leave receives an allowance equal to salary.
After the Disability Board receives the application for disability retirement, it must:
- review all relevant information about the applicant's fitness for duty;
- consider the duties of the applicant’s position;
- consider any other pertinent evidence; and
- grant or deny disability leave; or
- continue the matter pending receipt of additional information.
(See WAC 415-105-040.)
If a majority of the Disability Board agrees that the evidence supports the applicant's claim of disability, the Disability Board is to grant disability leave - for a period not to exceed six months - effective the day following the applicant’s discontinuance of service. (See RCW 41.26.120 and .125.)
The Disability Board does not have authority to grant disability leave retroactively if the applicant was in service by virtue of being in paid sick or vacation leave status. Further, it is not up to the Disability Board to require an applicant to use sick leave and/or vacation leave prior to granting disability leave. However, if the terms of the bargaining agreement between the employer and employee require such usage, the Disability Board can set the beginning date of the disability leave accordingly.
If the employee has an absolute, contractual right to use sick leave or vacation leave during an absence from duty, then the employee may elect to use any or all of such leave before going on disability leave. On the other hand, the employee may separate from the payroll without using any accrued leave and be eligible for disability leave immediately upon being found disabled by the Disability Board. (See Letter Opinion dated 9/9/71. See also Allen v. Fire Protection District, 68 Wn. Appl, P.2d, 1992.)
If the information before the Disability Board is insufficient to determine whether the applicant is or is not disabled, the matter can be continued to the next regular meeting or set for consideration at a special meeting. The Disability Board must advise the applicant of:
- the additional information needed;
- the applicant's obligation to provide the additional information; and
- the date by which the information must be provided.
The Disability Board is authorized to demand the appearance of the member and to request the appearance of any other persons it deems appropriate.
When seeking additional medical evidence to support the claim of disability, the applicant should advise each examining physician that:
- the board has requested additional information;
- any reports of the evaluation will be reviewed by the board; and
- the physician may be requested by the Disability Board to testify as to the physician's findings.
After the additional evidence has been submitted to the Disability Board, the Disability Board is to review the material; consider the applicant's fitness to perform with average efficiency the duties of his or her position or rank; and grant or deny disability leave. (See WAC 415-105-040.)
The period of disability leave will be for six consecutive months from and after discontinuance of service with the following exceptions:
- If at any time during the disability leave the Disability Board finds that the applicant is no longer disabled, the disability leave allowance shall be canceled and the member will be restored to duty in the same rank or position, if any, held by the member at the time of discontinuance of service. (See RCW 41.26.120 and .125.)
- If the applicant established that the disabling condition will be in existence for at least six months and he or she voluntarily waives disability leave, the applicant will immediately be granted a disability retirement allowance by the Disability Board. (See WAC 415-105-050(1) and RCW 41.26.120(4) and .125(4).)
- If, after examination for disability retirement and review of the medical and other relevant evidence, the Disability Board still cannot determine with reasonable certainty whether the applicant should or should not be granted a disability retirement allowance, the Disability Board may specify, in a written order, a reasonable period of trial service to determine the applicant's fitness for active duty. 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. The trial period would serve no useful purpose in determining the applicant’s fitness for the duties of the position held if he or she were required to perform only "light duty" tasks or the duties required of a different position.
The length of any trial service must be for a reasonable period and must be supported by medical evidence. If, based on a period of trial service, the applicant is found to be disabled, he or she is not entitled to a second six-month period of disability leave, but will return to disability leave status for the remainder of the initial six-month leave. (See WAC 415-105-050(3).)
Denial of Disability Leave
If the Disability Board denies disability leave or cancels a previously granted disability leave, the applicant has the right to appeal. (See Appeal Procedure.) An appeal is to be filed with the Director of the Department of Retirement Systems (DRS) within 30 days of the Disability Board's pronouncement of its decision. If the matter is appealed, the Disability Board must, within 90 days, submit the following to the Director for review:
- the Disability Board's certified decision and order, which shall include findings of fact and conclusions of law; AND
- a transcribed copy of the record of all proceedings in the matter; AND
- all other relevant evidence.
(See RCW 41.26.200.)
Examination for Disability Retirement
During the fifth or sixth month of disability leave, the Disability Board must have the applicant examined by the Disability Board's doctor or a specialist of the disability Board doctor's selection. The Disability Board shall not approve disability retirement without this examination unless:
- the applicant establishes that the disabling condition will exist for at least six months; AND
- he or she voluntarily waives disability leave.
In order to perform an appropriate examination and provide a valid and useful report to the Disability Board, the Disability Board's doctor or selected specialist must be knowledgeable about the normal, routine duties, functions and general demands of the position the applicant held at the time he or she discontinued service.
The Disability Board must furnish the examining physician with the applicant's job and/or position description. It should also inform the physician that the Board’s decision to grant or deny a disability retirement allowance is to be measured against the actual, ordinary, routine duties that the applicant performs. See Clark v. Board of Police Pension Fund Comm’rs,189 Wash. 555.66 P.2d 307 (1937); Rauch V. Fisher, 39 Wn. App. 910, 696 P. 2d 623 (1985), and WAC 415-105-030(2) and (3).
NOTE: WAC 415-105-030 provides for those situations where the applicant’s condition will be more appropriately evaluated by a medical doctor certified as a specialist in that particular field of medicine. For example, if the applicant alleges a mental disability and the Disability Board's doctor is a general practitioner, the Disability Board should ask its doctor to select a psychiatrist to conduct the examination for disability retirement.
Any member … may be retired … for any disability … which has been continuous since [the member's] discontinuance of service and which renders [the member] unable to continue … service. …
The phrase "unable to continue … service" means that the applicant is disabled to such extent that he or she is unable to discharge, with average efficiency, the ordinary routine duties of the member's position.
NOTE: In unmistakable terms, the statute pertains to a current disability, not one that might occur or recur in the future. There is a critical distinction between "unable to continue … service," which is the condition stated in law, and "shouldn't continue" or "shouldn't return to service." The former is existing and certain, whereas a possibility of future injury or illness is speculative.
The court has held that "… benefits clearly are not justified where a claimant adequately is performing those specific duties required by the position actually held by him."
See Rauch v. Fisher, 39 Wn. App. 910, 696. P.2d, 623 (1985).
The applicant is not entitled to a disability retirement allowance if:
- there is an available position for which the applicant is qualified and to which a person of the member’s grade or rank is normally assigned; and
- the Disability Board determines that the applicant is capable of discharging, with average efficiency, the duties of such available position.
In order to qualify to receive a disability retirement allowance, the applicant must prove that he or she is so physically or mentally disabled that he or she is unable to discharge with average efficiency the duties of the position held at the time service was discontinued.
If the Disability Board determines that the evidence satisfactorily supports the application for disability, the Disability Board is to grant the applicant a disability retirement allowance. (See WAC 415-105-060 (2).)
Decision and Order
Upon granting a disability retirement allowance, the Disability Board must enter a written decision and order that is accompanied by appropriate findings of fact and conclusions of law. The findings of fact must be supported by credible evidence sufficient to sustain the Disability Board's decision. When a disability retirement allowance is granted, findings of fact must include:
- the applicant's length of service with the employer and the position held at discontinuance of service;
- the names of the examining physicians and the dates of the examinations;
- the nature of the disability;
- whether or not the disability was incurred in the line of duty;
- whether or not the disability was incurred in other employment;
- dates encompassing disability leave;
- dates related to authorized return to duty on a trial basis and the factual basis for the decision; and
- dates encompassing waiver of disability leave, if applicable, and that applicant established that the disability will be continuous for at least six months.
(See WAC 415-105-070.)
The written decision and order, with findings of fact and conclusions of law and all the supporting documentation on which the decision was based, must be sent to DRS for review. Supporting documentation must include at least the following:
- the application for disability benefits showing the applicant's current mailing address;
- the job description accurately reflecting the duties of the position the applicant held at discontinuance of service;
- employer statement(s), if any, relevant to the applicant's position and/or fitness for duty;
- all medical and other evidence considered by the Disability Board; and
- the minutes and/or transcript of all meetings at which the applicant's disability status was considered.
(See WAC 415-105-070.)
Review by the LEOFF Administrator
According to statute, every order of a Disability Board granting a disability retirement allowance is reviewed by DRS except the finding that the disability was or was not incurred in the line of duty.
- Are the applicant's grade or rank (sergeant, captain, etc.) and his or her position (patrol, detective, combat firefighter, administrator, etc.) included in the findings?
- Are the dates referring to discontinuance of service, disability leave, trial service and retirement correct?
- Has the Disability Board complied with the statutory provisions for examination by the Board doctor?
- Has the Disability Board submitted all the evidence - including a description of applicant's duties - upon which the decision was based?
If the Disability Board has made technical errors in the findings, conclusions, and/or order, or if the record is incomplete or insufficient, the Administrator can remand the matter to Disability Board for further proceedings.
If the review shows that the record is technically correct, the Administrator will review the case on its merits; i.e., the Administrator will review the medical and other relevant material to determine if the evidence is sufficient to support the decision of the Disability Board. If the Administrator determines that the Disability Board's decision is correct, the Administrator will issue an order affirming the decision. The applicant then becomes a retiree and begins receiving a disability retirement allowance.
If the Administrator finds that the Disability Board's findings, inferences, conclusions or decisions are:
- in violation of constitutional provisions; or
- in excess of the statutory authority or jurisdiction of the Disability Board; or
- made upon unlawful procedure; or
- affected by other error of law; or
- clearly erroneous in view of the entire record as submitted; or
- arbitrary or capricious; the Administrator will reverse the Disability Board's decision.
The applicant has the right to appeal an administrative order denying disability retirement. The applicant is provided information about the appeal process with the mailing of the order.
The Order of Remand
If the Administrator remands a matter for further proceedings, the Disability Board is to review the order and pay particular attention to the discussion of the technical or procedural errors and to the specific steps required to correct them. The order of remand is intended to be used as a source of information and assistance to the Disability Board in the case at hand and possibly in subsequent cases as well. The remand will usually direct the Disability Board to amend certain findings or conclusions or to obtain additional evidence. After the Disability Board has complied with the provisions of the remand, the matter is again referred to the Administrator for review on its merits.
Denial of Disability Retirement
If the Disability Board denies disability retirement, it must immediately notify the applicant and advise the applicant of his or her right to appeal to the Director.
See WAC 415-105-080. The notice must be in writing and mailed or delivered to the applicant. If the applicant or the applicant’s representative attends the meeting or hearing and is advised of the decision and the right to appeal, a separate notice is not required; however, such advice and an acknowledgment of understanding by the applicant must be reflected in the Disability Board record/minutes.
The Disability Board must issue a written decision and order accompanied by appropriate findings of fact and conclusions of law and all supporting documentation. The applicant must be served with a copy of the order. DRS does not review the order denying a disability retirement allowance unless the applicant files an appeal within 30 days of issuance of the Disability Board's order.
Chapter 41.26 RCW does not address the issue of reemployment rights or restoration to duty following denial of a disability retirement allowance. In such cases, neither the Disability Board nor the Director of DRS has jurisdiction over the issue of reemployment.
Reexamination of the Retiree
Every disability retiree under age fifty is required to undergo periodic medical reexaminations with the following exceptions:
- Those who are over 49.5 years of age; and,
- Those who are permanently disabled as determined by the Disability Board. If the Disability Board determines that the retiree is so disabled that no possibility exists for the retiree to return to work or that rehabilitation could not possibly restore the retiree to fitness for duty, the Disability Board must send to DRS a copy of that determination and the current (within 90 days) medical evidence on which it was based.
The Disability Board's representative must:
- order a reexamination at six-month intervals;
- furnish the Disability Board with a copy of the examination report; and
- send a copy to DRS with notice of the Disability Board's action, e.g., continuation of disability retirement, determination that disability is permanent, etc.
If the retiree currently lives more than 100 miles from his or her former place of employment, the Disability Board may authorize the retiree to be examined by a physician in the retiree's immediate area. The local physician must:
- be approved by the Disability Board; and
- be informed by the Disability Board of the basis for the examination and the issues to be addressed in his or her report; and
- be furnished with a copy of the retiree's job/position description.
If the retiree refuses to submit to medical reexamination, the allowance is to be discontinued until the retiree complies with the examination requirement. If the retiree continues for one year to refuse to undergo reexamination, the Disability Board must cancel his or her retirement allowance. The cancellation of the retirement allowance can be appealed to the Director pursuant to RCW 41.26.200. (See WAC 415-105-090.)
Hearing and Consideration
If the medical reevaluation discloses that the retiree is fit to perform the duties of the rank or position held at the time of disability retirement, the retiree is entitled to a hearing before the Disability Board and further consideration of the matter. The hearing is required by statute (RCW 41.26.140(2)) and must be held, unless waived by the retiree, before his or her retirement allowance can actually be canceled. Both the notice and the hearing must comply with the provisions of RCW 34.05.
Standards for Cancellation of Disability Retirement
The standards for Disability Board proceedings to determine whether a disability retirement allowance is to be canceled were established by the State Supreme Court in the case of Malland v. Retirement Systems, 103 WN. 2d 484, 694 P.2d 16 (1985). This action involved a police officer and a firefighter who sought review of administrative determinations canceling their disability retirement allowances following reexaminations of their conditions.
These cases were consolidated and the court held, in essence, that cancellation of a disability retirement allowance is improper absent a showing that the circumstances under which the disability retirement allowance was originally granted have changed.
The standards provide that upon reexamination, the Disability Board is to determine whether the retiree is "still unable to perform his duties." See RCW 41.26.140(1). This phrase implies that some change in circumstances must be shown before a disability retirement allowance may be canceled. Moreover, the burden of proving such a change in circumstance rests with the Disability Board.
The most significant change in circumstance is an objective improvement in the physical or mental condition for which the individual was granted disability retirement. However, the court also indicated that it is not necessary to prove an objective improvement in the retiree’s medical condition in all cases. Changed circumstances may also include:
- the retiree's adaptation to the disability or his or her ability to compensate for the impairment; or
- changes in equipment used in the retiree's former job or in other requirements of the position; or
- the retiree's ability to perform his or her current job or other non-work activities.
While the retiree's ability to perform in his or her current job or other non-work related activities may be evidence of an improved medical condition, it is the Disability Board's responsibility to prove that the ability to hold another job or to participate in non-work activities demonstrates an improved condition and the ability to perform the duties of the retiree’s former position or rank.
The court's decision precludes cancellation of a disability retirement allowance on the basis of new medical evidence to the effect or indicating that the retiree's medical condition was incorrectly diagnosed and that the individual should never have been retired. Further, new expert testimony that a retiree's unchanged physical or mental condition does not prevent such person from performing his or her former duties is not evidence that would justify a cancellation of a disability retirement allowance. In a 1986 LEOFF case, the court held that if a new position is created within the grade or rank previously held by the retiree, the retiree may be reexamined to determine if the retiree is capable of performing the duties of the new position. Boyles v. Department of Retirement Systems, 105 Wn 2d 499 (1986).
The key elements in the process of determining whether to cancel a previously granted disability retirement allowance are summarized as follows:
- The Disability Board must determine whether the retiree is still unable to perform, with average efficiency, the routine duties of his or her position or rank.
- The Disability Board must offer evidence of change(s) in circumstances to support any contention that the retiree is not still disabled.
- The burden of establishing that the circumstances under which the disability retirement was originally granted have changed rests with the Disability Board.
Canceling the Allowance
After conducting the hearing and considering the evidence, if the Disability Board determines that the retiree is not still disabled, the Disability Board is to cancel the retiree's disability retirement allowance and the retiree is to be restored to duty in the same civil service rank, if any, held at the time of disability retirement. If the member is unable to perform the duties of that rank, then, at his or her request, the member is to be restored to duty in a like or lesser rank (as may be or become open and available) the duties of which the member is then able to perform.
In any event, the member shall not be returned or restored to duty at a salary or rate of pay less than the current salary attached to the rank or position the member held at the time of disability retirement.
Any person aggrieved by the Disability Board's order or determination canceling a previously granted disability retirement allowance has the right to appeal to the Director under the provisions of RCW 41.26.200. (See RCW 41.26.140.)
LEOFF Administrative Appeal Procedure
The LEOFF appeal process, provides for decisions of local Disability Boards to come before DRS for review. The following are elements of the appeal process:
- The statutory framework.
- Decisions which are appealable to DRS under the provisions of RCW 41.26.200.
- Decisions not appealable to DRS under the provisions of RCW 41.26.200.
- Final decisions which require a hearing prior to petition for judicial review.
- Who can appear during the course of a hearing.
The statutes governing those issues which can come before DRS on appeal are RCW 41.26.200 through 41.26.221. These statutes together establish a two step process. The first step involves a review of the record of the proceedings which occurred before the Disability Board, and the second step involves a de novo hearing.
The first appeal statute is RCW 41.26.200 which provides as follows:
Any person feeling aggrieved by any order or determination of a Disability Board denying disability leave or disability retirement, or canceling a previously granted disability retirement allowance, shall have the right to appeal the order or determination to the Director. The Director shall have no jurisdiction to entertain the appeal unless a notice of appeal is filed with the Director within thirty days following the rendition of the order by the applicable Disability Board. A copy of the notice of appeal shall be served upon the Director and the applicable disability and, within ninety days thereof, the Disability Board shall certify its decision and order which shall include findings of fact and conclusions of law, together with a transcript of all proceedings in connection therewith, to the Director for review. Upon review of the record, the Director may affirm the order of the Disability Board or may remand the case for such further proceedings as he or she may direct, in accordance with such rules of procedure as the Director shall promulgate.
Further, RCW 41.26.140(6) provides:
Any person feeling aggrieved by an order of a Disability Board determining that a beneficiary's disability has not ceased, pursuant to RCW 41.26.130(3) has the right to appeal the order or determination to the Director. The Director shall have no jurisdiction to entertain the appeal unless a notice of appeal is filed with the Director within thirty days following the rendition of the order by the Disability Board. A copy of the notice of appeal shall be served upon the Director and the applicable Disability Board and, within ninety days thereof, the Disability Board shall certify its decision and order which shall include findings of fact and conclusions of law, together with a transcript of all proceedings in connection therewith, to the Director for review. Upon review of the record, the Director may affirm the order of the Disability Board or may remand the case for further proceedings if the Director finds that the disability, inferences, conclusions, or decisions are:
- in violation of constitutional provisions; or
- in excess of the statutory authority or jurisdiction of the Disability Board; or
- made upon unlawful procedure; or
- affected by other error of law; or
- clearly erroneous in view of the entire record as submitted and the public policy contained in this chapter; or
- arbitrary or capricious.
The decisions of a Disability Board which can be appealed to DRS are: denial and/or cancellation of disability leave; denial of disability retirement; cancellation of a previously granted disability retirement allowance; and a determination by the Disability Board that a retiree's disability has not ceased following the retiree's application for a determination under RCW 41.26.135(1.)
There are two decisions made by local Disability Boards which are never reviewed by DRS. The local Disability Board is required to make a finding, in connection with the granting of a disability retirement allowance, as to whether or not the disability was incurred in the line of duty. DRS is precluded by law from reviewing that particular finding. See RCW 41.26.120(3) and RCW 41.26.125(3). Further, the decision of a Disability Board to deny approval of a claim for medical services is not reviewed by DRS. The Director has no statutory authority or jurisdiction to either review or consider an appeal from such decisions. Persons aggrieved by either of these must seek relief in the courts. See RCW 7.16.040.
A decision granting a disability retirement allowance is automatically reviewed by DRS pursuant to RCW 41.26.120(3) and RCW 41.26.125(3). Those statutes give the Director the right to affirm the decision, remand for further proceedings, or reverse the decision. If the decision is reversed an aggrieved person must file notice for hearing before the Director before petitioning for judicial review. See RCW 41.26.211.
A typical case under RCW 41.26.200 begins with a Disability Board denying disability retirement benefits to a member. The member then has 30 days to appeal by filing a notice with DRS. A copy of the notice of appeal is also served upon the Disability Board. If a proper notice is timely filed, the Disability Board has 90 days to certify its decision and order to DRS. That certification must include findings of fact, conclusions of law, together with a copy of the record including a transcript of all proceedings which were held before the local Disability Board regarding the matter.
When the record is received by DRS, it is reviewed by the LEOFF Administrator under the authority delegated by the Director. The Administrator enters an order of remand for further proceedings, an order of affirmance, or an order of reversal and remand. The order (with the exception of a remand for further proceedings) is a final decision subject to appeal pursuant to RCW 41.26.211.
The record to be reviewed under RCW 41.26.200 is the record established by the local Disability Board together with any relevant materials in the Department records.
RCW 41.26.211 provides as follows:
Any person aggrieved by any final decision of the Director must, before petitioning for judicial review, file with the director of the retirement system by mail or personally within sixty days from the day such decision was communicated to such person, a notice for a hearing. The notice of hearing shall set forth in full detail the grounds upon which such person considers such decision unjust or unlawful and shall include every issue to be considered, and it must contain a detailed statement of facts upon which such person relies in support thereof. Such persons shall be deemed to have waived all objections or irregularities concerning the matter on which such appeal is taken other than those specifically set forth in the notice of hearing or appearing in the records of the retirement system.
Unlike RCW 41.26.200, appeals under RCW 41.26.211 can be taken from decisions which have the effect of either granting or denying benefits. That is, in addition to decisions rendered pursuant to RCW 41.26.200, the one other decision requiring that a hearing be requested and held prior to petitioning for judicial review is a decision reversing a Disability Board’s order granting a disability retirement allowance. The notice for hearing must list every issue the appellant wants to have considered and is to comply with the format set forth in WAC 415-08-020.
When a notice for hearing is filed within the prescribed time, the provisions of RCW 41.26.221 apply. This statute provides as follows:
A hearing shall be held by the Director, or the Director's duly authorized representative, in the county of the residence of the claimant at a time and place designated by the Director. Such hearing shall be de novo and shall conform to the provisions of chapter 34.05 RCW, as now or hereafter amended. The Disability Board and the Department shall be entitled to appear in all such proceedings and introduce testimony in support of the decision. Judicial review of any final decision by the Director shall be governed by the provisions of chapter 34.05 RCW as now or hereafter amended.
At the request of the Director, the DRS Presiding Officer conducts the hearing. The hearing is held in the county of the claimant’s residence, unless waived by agreement of the parties.
Two important aspects of the hearing outlined by RCW 41.26.221 are:
- The hearing is de novo (a new record is made);
- Both DRS and the Disability Board have a statutory right to appear and present evidence in support of the Administrator's decision. Further, if the hearing is requested by a member, the employer is given an opportunity to file a notice of appearance and become a party in the case. If the hearing is requested by the employer, the member is a party to the hearing.
After the hearing, the Presiding Officer issues a Final Decision, including findings of fact and conclusions of law.
Any person aggrieved by the Final Decision may petition for judicial review pursuant to RCW 34.05.530.
Adverse decisions relating to membership, service credit, and retirement benefits may be appealed to the Department pursuant to Chapter 415-04 WAC.
Note: Referenced RCWs and WACs may be reviewed at the Web site maintained by the Office of the Code Reviser: www1.leg.wa.gov/CodeReviser.