Request By:
Mr. M. C. Miller
Associated Professional Firefighters
of Kentucky
239 Southland Drive
Lexington, Kentucky 40503
Opinion
Opinion By: Robert F. Stephens Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising three questions involving the firemen's pension fund.
Your first two questions involve a situation where a fireman sustains injuries while on duty and subsequently feels he is unable to function as a firefighter. He applies for a disability pension and the medical examiners' reports indicate that he is totally and permanently disabled. The fireman involved, however, is transferred to communications. The board of trustees of the police and firemen's pension fund denies the disability pension application. Your first question asks:
". . . Upon service connected injury, can the city transfer a person from his primary duty, firefighting, to one of their choosing such as alarm room or fire prevention?"
We assume you are referring to KRS 67A.360 to 67A.690, the "Police and Firemen's Retirement and Benefit Fund," applicable to an Urban-County Government, although these provisions are similar to KRS 95.851 to 95.885, pertaining to "Police and Firemen's Benefit Fund in Cities of the Second Class."
The Kentucky provisions applicable to firemen working for an Urban-County Government, like those in some other states, provide that a fireman, to be entitled to a pension because of an occupational disability, must be totally and permanently disabled. Partial disability does not justify a disability pension. See KRS 67A.460 and McQuillen Mun. Corp. (3rd Ed.), § 12.149.
In connection with determining total and permanent disability, see KRS 67A.480, which states:
"For the purpose of KRS 67A.360 to 67A.690 a member shall be considered totally and permanently disabled after the board has received written certification by at least two (2) licensed and practicing physicians selected by the board that the member is totally and likely to be permanently disabled for the further performance of the duties of any assigned position in the service of the department. If upon consideration of the report of such physicians and such other evidence as shall have been presented to it by the member or others interested therein, the board finds the member to be totally and permanently disabled, it shall grant him a disability retirement annuity upon written certification that the member has been separated from the service of the government because of total disability of such nature as to reasonably prevent further service for the employer, and as a consequence is not entitled to compensation from the government."
Thus under the statute the reports of the physicians are not absolutely binding upon the board and the final determination as to whether the applicant is totally and permanently disabled is made by the board after considering the physicians' reports and the other evidence presented. The board is required to determine total and permanent disability on the basis of "total disability" as defined in KRS 67A.360(16):
"'Total disability' shall mean a disability which substantially precludes a person from performing with reasonable regularity the substantial and material parts of any gainful work or occupation in the service of the department that he would be competent to perform were it not for the fact that the impairment is founded upon conditions which render it reasonably certain that it will continue indefinitely."
In those states where total and permanent disability is the requirement for a disability pension it is a common practice to transfer a person who has incurred a disability less than total to a position which he is competent to perform in order that he not be dropped from the payroll. If a disabled applicant cannot satisfy the legal requirement of "total disability" to the board's satisfaction and refuses reassignment to a position in the department he can perform, he may be left without a job and a pension.
Disability, therefore, which does not satisfy the Kentucky statutory requirement of total disability does not justify a disability pension. While we have not found a Kentucky case dealing with the interpretation of total disability in connection with a disability pension, you may wish to consider the following cases from other jurisdictions where applications for disability pensions were denied because the persons were not totally disabled:
Hubbard v. Pueblo Firemen's Pension Fund, Colorado, 374 P.2d 492 (1962);
Nuce v. Board of Trustees, Florida, 246 So.2d 610 (1971);
Davis v. City of Dallas, Texas, 481 S.W.2d 433 (1972);
Miller v. Board of Trustees of Police Pension Fund, Louisiana, 286 So.2d 788 (1973).
Your second question asks:
"Upon the vote of the board, if a pension is denied (because of re-assignment as above) an applicant has 20 days to appeal. If an applicant does decide to accept re-assignment and the injury causes continuing pain and agony, can the applicant re-submit his application without jeopardy as to the original cause after the 20 days have expired? "
As you have indicated, a decision of the board may be appealed. KRS 67A.670 provides that the board's determination may be appealed within twenty days to the circuit court of the county in which the urban-county government is located. If there is no timely appeal, that specific claim on the basis of that particular fact situation is concluded.
If, however, a person is reassigned to another job within the department and subsequently develops additional disability which prohibits him from performing his job at that time or simply cannot perform his new job at that time because of the original disability, a new claim could be presented to the board. Before a disability pension could be granted, however, the applicant would have to satisfy at that time the legal definition of total disability on the basis of new medical examinations and evidence and such other new evidence as he elects to present. The key is the person's condition at the time and whether he is totally disabled at the time. Thus a person whose initial disability pension request was denied may file another application at any time if subsequent facts and circumstances result in his becoming totally disabled at some point in the future.
Your third question asks:
"At present, employees with non-service permanent and total disability are filling positions in our department so as to continue until a built in time period has expired (heart disease after 5 years). If this condition was known before time expired, is our pension fund liable after time expires and pension is applied for?"
Your question is somewhat contradictory in that, legally, a person who is working for the department and able to perform his assigned duties is not totally and permanently disabled as far as the law applicable to disability pensions is concerned. We would assume that the department's primary concern with its employes is whether they can satisfactorily perform their assigned duties regardless of how much in service disability or non-service disability they may have at the present time. It is our understanding that fire department personnel, by ordinance, are required to undergo an annual physical examination and, presumably, those persons now working have been cleared as a result of such examinations.
You apparently are referring to KRS 67A.470 dealing with a disability pension because of total and permanent disability as the result of any cause other than occupational disability where the person has rendered at least five years of total service. If a person renders at least five years of total service and then develops a total and permanent disability from nonoccupational causes, and satisfies, to the board's satisfaction, the legal requirement of total disability, he would be entitled to a disability pension pursuant to KRS 67A.470 regardless of how much of his prior medical history was known to the department.