§ 6 — Ordinary disability retirement

Section 6. (1)Conditions for Allowance.— Any member in service who is unable to perform the essential duties of his job and that such inability is likely to be permanent after completing fifteen or more years of creditable service, or any such member who is a veteran as defined in section one is unable to perform the essential duties of his job and that such inability is likely to be permanent before attaining the maximum age for his group and after completing ten or more years of creditable service, or any member in service in a retirement system accepting the ten year option provided for by this paragraph who is unable to perform the essential duties of his job and that such inability is likely to be permanent after completing ten or more years of creditable service, upon his written application on a prescribed form filed with the board and with his respective employer, or upon such an application by the head of his department after a hearing, if requested, as provided for in subdivision (1) of section sixteen and subject to the conditions set forth in said section sixteen and in this section, shall be retired for ordinary disability as of a date which shall be specified in such application and which shall be not less than fifteen days nor more than four months after the filing of such application but in no event later than the maximum age for his group, nor earlier than the last day for which he received regular compensation. Any system may accept the ten year option provided for by this paragraph by majority vote of the board of each such system, subject to the approval of the legislative body. For purposes of this subdivision, ''legislative body'' shall mean a town meeting in a town, the city council in a city, the county retirement board advisory council in a county, and the district members in a district. Acceptance shall be deemed to have occurred upon the filing of a certification of such votes with the commission. For the purposes of this section, the state teachers' and state employees' retirement systems shall be deemed to have accepted the provisions of this section. No such retirement shall be allowed unless the board, after a review of the evidence it deems appropriate, and after review by the commission pursuant to the provisions of section twenty-one, and including in any event on examination by the regional medical panel provided for in subdivision (3) of section six and including a certification of such incapacity by a majority of the physicians on such medical panel, shall find that such member is unable to perform the essential duties of his job and that such inability is likely to be permanent, and that he should be so retired.Prior to the determination of a retirement under this section, a member shall submit to the retirement board a written statement authorizing release of information from the Federal Internal Revenue Service and the department of revenue relative to the annual gross earned income of the member pursuant to an agreement between the Federal Internal Revenue Service, the department of revenue, and the commission, in accordance with section ninety-one A.(2)Amount of Allowance.— Upon retirement under the provisions of this section a member shall receive an ordinary disability retirement allowance to become effective on the date of his retirement. Payments under such allowance shall be made as provided for in sections twelve and thirteen and the continuance of payments shall be governed also by the provisions of section eight.(a) The normal yearly amount of such allowance for any member classified in Group 1, Group 2 or Group 4 other than a veteran as defined in section 1 shall be equal to that to which the member would be entitled under section 5 as prescribed for a member of the member's group, if the member were to be retired for superannuation upon the attainment of age 55, or for any member classified in Group 1 who became such a member on or after April 2, 2012 if such member were to be retired for superannuation upon the attainment of age 60, with an amount of creditable service equal to that with which the member is credited at the date of the member's actual retirement for ordinary disability; provided, however, that if the member has attained age 55, or for a member classified in Group 1 who became such a member on or after April 2, 2012 if the member has attained age 60, the normal yearly amount of such allowance shall in no event be less than that to which the member would be entitled if the member were to be retired for superannuation under section 5 as prescribed for a member in the member's group; and provided, further, that the normal yearly amount of such allowance for a member who became such a member before April 2, 2012 shall not exceed four-fifths of: (i) the average annual rate of the member's regular compensation during any period of 3 consecutive years of creditable service for which such rate of compensation was the highest, and (ii) the average annual rate of regular compensation received by such member during the period or periods, whether or not consecutive, constituting the member's last 3 years of creditable service preceding retirement, whichever is greater; and provided, further, that for a member who became such a member on or after April 2, 2012 the normal yearly amount of such amount shall not exceed four-fifths of: (i) the average annual rate of the member's regular compensation during any period of 5 consecutive years of creditable service for which such rate of compensation was the highest, and (ii) the average annual rate of regular compensation received by such member during the period or periods, whether or not consecutive, constituting the member's last 5 years of creditable service preceding retirement, whichever is greater.(b) The normal yearly amount of such allowance for any member classified in any Group who is a veteran as defined in section one shall be equal to the sum of—(i) A yearly amount of annuity equal to the yearly amount of the regular life annuity specified in clause (i) of Option (a) of subdivision (2) of section twelve; and(ii) A yearly amount of pension equal to one-half of the average annual rate of his regular compensation for the twelve-month period for which he last received regular compensation immediately preceding the date his retirement allowance becomes effective; provided, that if he has attained age fifty-five on or before such date, the normal yearly amount of such allowance shall in no event be less than that to which he would be entitled if he were to be retired for superannuation under the provisions of section five as prescribed for a member of his group; and provided, that the normal yearly amount of such allowance shall not exceed four-fifths of the average annual rate of his regular compensation during the five-year period of his creditable service subsequent to June thirtieth, nineteen hundred and thirty-two, for which such rate was the highest, anything in this section to the contrary notwithstanding.(c) The normal yearly amount of such allowance for any member classified in Group 3 other than a veteran as defined in section one shall be equal to that to which he would be entitled under the provisions of section twenty-six if he were to be retired for superannuation upon the completion of twenty years' service.(d) Payments to a member retired under the provisions of this section who is incarcerated for having been convicted of a felony committed on or after the effective date of this paragraph shall cease for the period of such member's incarceration. Under no circumstances shall such payments be recoverable by such member after such period of incarceration.(3)Regional Medical Panels.— (a) No member shall be retired for a disability under the provisions of this section or section seven unless he has been examined first by a regional medical panel and unless the physicians on such panel, after such examination, shall review the pertinent facts in the case, and such other written and oral evidence as the applicant and the employer may present to be reviewed in making a determination of the member's medical condition. No physician having previously examined the member, except as part of a prior disability medical panel, shall serve on the regional medical panel examining the member. At the conclusion of such examination, but in not more than sixty days, the panel shall certify to the board in writing whether such physicians on said panel find that such member is mentally or physically incapacitated for further duty and that such incapacity is likely to be permanent, and in any case involving a retirement under section seven, the panel physicians shall state further whether or not the disability is such as might be the natural and proximate result of the accident or hazard undergone on account of which retirement is claimed under said section seven.For the purposes of this section the following terms shall have the following meanings:''Associated physicians'', a physician providing services under this section who, has a direct and substantial financial interest unrelated to his service under this chapter which can be reasonably effected by another physician serving on the same medical panel in such a manner and to such an extent as to make it unlikely that the physician would be able to exercise independent judgment in providing such services; provided, however, that a physician providing said services through a disability review organization shall not be considered an associated physician; provided, further, that the physician has no direct and substantial financial interest in the profit and loss of said organization in such a manner and to such an extent as to make it unlikely that the physician would be able to exercise independent judgment.Such regional medical panel shall be appointed by the public employee retirement administration commission from a pool of physicians developed after consultation with representatives of the Massachusetts Medical Society and the department of public health and shall consist of three physicians, who shall not be associated physicians, and who shall be selected for the purpose of examining the member whose retirement is under consideration and shall, so far as practicable, be skilled in the particular branch of medicine or surgery involved in the case.Said examination shall be conducted in accordance with the standards outlined by the commission in rules and regulations promulgated pursuant to this chapter.(b) Any medical examination of any member under the provisions of sections six to eight, inclusive, shall be conducted as soon as practicable and at a time and place convenient for all of the interested parties; provided, however, that such examinations shall so far as practicable occur within a region established by the public employee retirement administration commission which has a reasonable geographical proximity to the board and member. The arrangement for such examination shall be made by the commission after sufficient notice to the retirement board and applicant and shall be conducted on a timely basis. In the case of any such examination of an employee of the commonwealth, the state retirement board shall notify the state agency having jurisdiction over the said employee to designate a physician to assist the state retirement board in representing the commonwealth in the medical panel examinations; and provided, further, that in the case of any teacher, the school committee or board of trustees having jurisdiction over such teacher shall upon request of the teachers' retirement board, designate a physician in representing the municipality or other governmental body.If the panel fails to meet within sixty days after appointment by the commission to conduct their examination, or at any earlier time upon the request of the applicant, the commission shall require the three physicians to meet separately to conduct such examinations and the employer's physician and legal counsel and the member's physician and legal counsel shall have the opportunity to attend each such examination. Upon receipt of such a request from an applicant, the commission shall establish such separate examinations as soon as practicable thereafter. At the discretion of the member and his legal counsel and the employer and his legal counsel, said legal counsels may be present during the decision making process of the panel; provided, however, that neither counsel shall have a vote in the final determination of such panel.No member shall be required to undergo any examination, re-examination or hearing unless he has received prior notification, in writing, of his right, if any, to be represented by his legal counsel and by his physician at such examination, re-examination or hearing. Such notification shall be made on a form prescribed by the commission.(c) The physicians composing the regional medical panel may obtain x-ray plates or other medical evidence which, in their judgment is necessary to determine the natural and proximate cause, nature and degree of disability of such member and shall obtain any existing evidence from initial and in-service examinations conducted pursuant to section sixty-one A of chapter thirty-one. The member and the employer may each be represented by counsel. A physical examination of such member shall be conducted by the medical panel.The medical panel, after completing such examinations pursuant to this section, shall within sixty days report their findings and recommendations to the board. The regional medical panel shall attach to their finding a certificate, approved by the commission, certifying that their findings were arrived at independently of each other and free of undue influence of any kind.At the discretion of the member and his physician and the employer and its physician, said physicians may be present and may answer questions from the panel during the decision making process of the panel; provided, however, that neither physician shall have a vote in the final determination of such panel; and provided, further, that either physician may disagree with the findings of such panel and may indicate such opinion by signing and noting their objections on an appropriate medical certificate and by submitting a written statement as to their medical opinion involving such case.Upon receipt of such medical panel report, the board shall within thirty days notify the employee and governmental unit in writing of the panel's finding.The fees and expenses of physicians for services on any medical panel and all expenses for obtaining x-rays or other medical evidence in connection with such examination shall upon the approval of the commission be paid by the commonwealth in accordance with a fee and expense schedule established by the house and senate committees on ways and means. Such fees of the physician designated by the applicant which are not reimbursed by a third party shall also be paid by the commonwealth in accordance with said fee schedule. No such fees shall be paid unless the appropriate certificate provided herein has been filed.(4)Final Determination on Ordinary Disability Applications.— Under this section the board shall make a final determination of such ordinary disability application within one hundred and eighty days of the date of filing of such application except in the following instances:—(1) the board, upon filing a written request outlining the specific circumstances for such a waiver, is granted an extension for a final determination by the commission or his designee; or(2) the regional medical panel is unable to complete its examinations and review and issue a written decision of the medical aspects of the case and is granted an extension by the commission or his designee.