840 CMR 10: Standard Rules for Disability Retirement

840 CMR 10.00 is the standard rules for disability retirement promulgated by the Public Employee Retirement Administration Commission (PERAC) under the authority of M.G.L. c. 7, § 50 and M.G.L. c. 32, §§ 6 and 21. Except as may otherwise be provided by PERAC, or by supplementary rules of a particular retirement board approved by PERAC, 840 CMR 10.00 shall govern the following disability proceedings and procedures commenced by or before any retirement board after January 1, 2016.

• (1) Proceedings for ordinary and accidental disability retirement;
• (2) Proceedings for restoration to active service of members retired for disability;
• (3) Proceedings for modification of the retirement allowance of members retired for disability;
• (4) Procedures for medical examinations by medical panels on applications for disability retirement;
• (5) Procedures for re-examination, evaluation and rehabilitation of members retired for disability; and
• (6) Procedures for annual reporting of earnings and refunds under M.G.L. c. 32, § 91A by members retired for disability.

10.01 Definitions

Words and phrases used in 840 CMR 10.00 shall have the meanings assigned by M.G.L. c. 32 and by 840 CMR 10.01 unless the context requires otherwise.

Applicant means a member who has applied for ordinary or accidental disability retirement, or a member who has been retired for disability who is the subject of a proceeding for restoration to active service or modification of the retirement allowance, or a member who has been re-examined pursuant to M.G.L. c. 32, § 8(2)(a).

Medical panel means the regional medical panel established pursuant to M.G.L. c. 32, § 21(2)(d) and assigned to conduct examinations or re-examinations in proceedings before a particular retirement board.

10.02 Purpose of Standard Rules: Retirement Board Policy

840 CMR 10.00 is the standard rule for disability proceedings. It is the policy of every retirement board to conduct disability proceedings in a fair and impartial manner that is consistent with applicable law and these regulations. The retirement board shall ensure that all proceedings are conducted with due regard for the rights of the parties.

10.03 Supplementary Rules: Approval by PERAC

Any retirement board may adopt supplementary rules applicable to disability proceedings before that board that supplement or modify the provisions of 840 CMR 10.00, provided that such supplementary rules are approved by PERAC pursuant to 840 CMR 14.02.

10.04 Standard for Decision, Findings of Fact

A retirement board shall grant an application for ordinary or accidental disability retirement only if the board makes findings of fact based on the evidence in the record that establish all of the elements required by M.G.L. c. 32, §§ 6 and 7, as applicable. A retirement board shall set forth its findings of fact in writing. All findings shall be supported by substantial evidence in the record.

10.05 Proceedings; Parties; Representation; Record

The applicant is a party to any disability proceeding before the retirement board. The retirement board shall be deemed a party to any appeal from a disability proceeding.

An applicant may be represented by counsel, a union representative, or any other representative of the applicant's choosing in any disability proceeding before the retirement board.

The retirement board shall maintain a record of each disability proceeding. The record shall include all documents, exhibits, and other evidence submitted or considered in connection with the disability proceeding.

10.06 Proceedings for Ordinary or Accidental Disability Retirement; Applications; Additional Information

An application for ordinary or accidental disability retirement shall be made on a form prescribed by PERAC. A member who wishes to apply for ordinary or accidental disability retirement shall file the application with the retirement board.

Upon receipt of an application for disability retirement, the retirement board shall notify the applicant of the procedures to be followed in the disability proceeding and shall inform the applicant of the right to be represented.

The retirement board may require the applicant to submit such additional information or documentation as the board deems necessary to process the application.

10.07 Information to be Obtained From Member's Department Head or Employer

Upon receipt of an application for disability retirement, the retirement board shall request from the member's department head or employer a statement describing the member's job duties and the circumstances giving rise to the disability.

10.13 Medical Panel; Conduct of Examination; Certificate; Standard of Review

The medical panel shall conduct an examination of the applicant in accordance with M.G.L. c. 32, § 6(3) and shall issue a certificate indicating whether the applicant is physically or mentally incapacitated for further duty. The medical panel certificate is binding on the retirement board unless the board finds specific grounds to depart from the certificate's conclusions based on substantial evidence in the record.

REGULATORY AUTHORITY: 840 CMR 10.00: M.G.L. c. 7, § 50; c. 32, §§ 6, 8 and 21.