Request By:
Mr. Richard A. Jarvis
Department of Law
City of Newport
Fourth and York Streets
Newport, Kentucky 41011
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of September 30, in which you relate that the chief of police has applied for a disability pension to the Pension Board, asserting that his ill health is work-related and, at the same time, submitted statements from two physicians of his own selection. The board has not selected any physician.
With respect to the physicians' certificates you state that you are aware that neither indicated that the disability was permanent and one does not state that it was work-related. You seek advice as to the proper procedure to be taken with respect to determining whether or not the officer in question is entitled to a disability pension based on work-related causes.
KRS 95.864(1) reads in part as follows:
"(1) For the purpose of KRS 95.851 to 95.991, a member shall be considered totally and permanently disabled after the board shall have 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. . . ." (Emphasis added.)
The above statute simply requires that the physician's certificate state that the member is totally and likely to be permanently disabled for the further performance of the duties of any position in the department. There is no requirement that the certificate include a statement as to whether the cause of disability was "job-related. " If the member applies for disability under KRS 95.862 (job-related) rather than KRS 95.863 (not job-related) , then expert evidence or testimony must be presented to the board of this fact either in the doctor's certificate or testimony before the board, or both, in order for the board to make a determination of the fact that the disability was, in fact, "job-related. "
You will also note that the above statute requires the report of two physicians selected by the board which is mandatory in order to determine whether the disability is permanent and work-related. Referring to OAG 77-225 (copy enclosed), this office took the position that KRS 95.864 did not require the board to seek the advice of two examining physicians of their own choice every time an applicant claims that he is totally disabled. However, such would be required before the board can determine that the applicant is totally disabled.
Since, from the facts presented, the board has not complied with the requirements of KRS 95.864 in order to determine whether or not the disability is permanent and work-related, we believe that it must do so in order to make such a decision with respect to the officer in question.
As to whether certain named physical and mental ailments can be claimed as "job-related, " we cannot advise. These questions can only be determined from the report or testimony of qualified physicians familiar with the case history.