CO Code § 31-31-803 (2021)
2021 Colorado Code|Title 31 - Government - Municipal|Article 31 - Fire - Police - New Hire Pension Plans|Part 8 - Disability and Survivor Benefits|§ 31-31-803. Retirement for Disability

      Any member hired before, on, or after April 7, 1978, who becomes totally disabled, as defined in section 31-31-801 (4), shall be retired from active service for disability and shall be eligible to receive the disability benefit provided by this subsection (1) or section 31-31-806.5 if the member: (a) (I)Any member hired before, on, or after April 7, 1978, who becomes totally disabled, as defined in section 31-31-801 (4), shall be retired from active service for disability and shall be eligible to receive the disability benefit provided by this subsection (1) or section 31-31-806.5 if the member:   Is not eligible for the normal retirement pension from a plan that is part of the defined benefit system pursuant to section 31-31-204 or a local defined benefit retirement pension provided pursuant to article 30.5 of this title; or    Has not reached age fifty-five with twenty-five years of accumulated service as a member and is a participant under the statewide money purchase plan pursuant to part 5 of this article or under a local money purchase plan.       The normal annual disability benefit for total disability for a member who is retired pursuant to subparagraph (I) of this paragraph (a) shall be seventy percent of the annual base salary paid to the member immediately preceding retirement for disability.       Notwithstanding subsection (5) of this section, a member eligible for the normal annual disability benefit for total disability may elect to receive one of the following disability benefit options in lieu of the normal annual disability benefit provided under paragraph (a) of this subsection (1):   Option 1. A reduced annual disability benefit payable to the member and, upon the member's death, all of such reduced annual disability benefit to be paid to the member's designated beneficiary for life;    Option 2. A reduced annual disability benefit payable to the member and, upon the member's death, one-half of such reduced annual disability benefit to be paid to the member's designated beneficiary for life; or    Option 3. A reduced annual disability benefit payable to the member and, upon the member's death, all of such reduced annual disability benefit to be paid to the member's surviving spouse and dependent children, if any, until the death of the surviving spouse, the death of any adult dependent child found to be incapacitated by the board, or until the youngest child, regardless of marital status, reaches twenty-three years of age, whichever is later.       A member shall be deemed to have elected option 3 specified in subparagraph (III) of paragraph (b) of this subsection (1) if the member is eligible for a benefit for total disability under this subsection (1), is survived by a spouse or dependent child, and dies before making an election allowed under paragraph (b) of this subsection (1).    (Deleted by amendment, L. 2009, (SB 09-017), ch. 53, p. 188, § 2, effective March 25, 2009.)         A member who becomes occupationally disabled, as defined in section 31-31-801 (3), and is awarded a disability retirement prior to October 1, 2002, shall be retired from active service for such time as the occupational disability continues and shall be eligible to receive the disability benefit provided by this subsection (2) or section 31-31-806.5 if the member:   Is not eligible for the normal retirement pension from a plan that is part of the defined benefit system pursuant to section 31-31-204 or a local defined benefit retirement pension provided pursuant to article 30.5 of this title; or    Has not reached age fifty-five with twenty-five years of accumulated service as a member and is a participant under the statewide money purchase plan pursuant to part 5 of this article or under a local money purchase plan.       The annual disability benefit for occupational disability for a member who is retired pursuant to paragraph (a) of this subsection (2) shall be thirty percent of the annual base salary paid to the member immediately preceding retirement for disability. The benefit shall be increased by:   Ten percent of the annual base salary if such member had a spouse at the time of becoming occupationally disabled, for so long as such spouse survives and is married to such member or is legally entitled to maintenance from such member in an amount equal to or greater than the amount of the increase in the benefit authorized by this subparagraph (I). If the amount of maintenance is less than the amount of the increase in the benefit authorized by this subparagraph (I), the benefit shall be increased by an amount equal to the amount of the maintenance; except that, for any member who is receiving the benefit authorized by this subparagraph (I) and who becomes legally required to pay maintenance prior to June 1, 2001, the amount of the benefit shall be ten percent of the annual base salary.    Ten percent of the annual base salary if such member has any dependent children.    (Deleted by amendment, L. 2009, (SB 09-017), ch. 53, p. 188, § 2, effective March 25, 2009.) (2.1)   A member who becomes permanently occupationally disabled, as defined in section 31-31-801 (3.2), shall be retired from active service for such time as the permanent occupational disability continues and shall be eligible to receive the disability benefit provided by this subsection (2.1) or section 31-31-806.5 if the member:   Is not eligible for the normal retirement pension from a plan that is part of the defined benefit system pursuant to section 31-31-204 or a local defined benefit retirement pension provided pursuant to article 30.5 of this title; or    Has not reached age fifty-five with twenty-five years of accumulated service as a member and is a participant under the statewide money purchase plan pursuant to part 5 of this article or under a local money purchase plan.       The annual disability benefit for a permanent occupational disability for a member who is retired pursuant to paragraph (a) of this subsection (2.1) shall be fifty percent of the annual base salary being paid to the member immediately preceding retirement for disability. (2.2)   A member who becomes temporarily occupationally disabled, as defined in section 31-31-801 (3.4), shall be retired from active service for such time as the temporary occupational disability continues for a period up to five years from the date of original disablement and shall be eligible to receive the disability benefit provided by this subsection (2.2) or section 31-31-806.5 if the member:   Is not eligible for the normal retirement pension from a plan that is part of the defined benefit system pursuant to section 31-31-204 or a local defined benefit retirement pension provided pursuant to article 30.5 of this title; or    Has not reached age fifty-five with twenty-five years of accumulated service as a member and is a participant under the statewide money purchase plan pursuant to part 5 of this article or under a local money purchase plan.       The annual disability benefit for a temporary occupational disability for a member who is retired pursuant to paragraph (a) of this subsection (2.2) shall be forty percent of the annual base salary being paid to the member immediately preceding retirement for disability.    A member found to have a temporary occupational disability shall be subject to reexamination at such times and in such manner as the board may direct. Based on the recommendations of the physician panel, the board may require treatment, counseling, or therapy necessary to rehabilitate the member for return to work. At the time of reexamination, a member with a temporary disability shall provide evidence of compliance with the requirements established by the board. Benefits may be terminated by the board if the member fails to make rehabilitation efforts or if sufficient evidence of compliance and continuing disability is not provided to the board by the disabled member.    A member who remains disabled may apply for an upgrade to permanent occupational disability or to total disability no later than six months prior to the end of five years from the date of original disablement. A member may be upgraded to a permanent occupational disability upon a finding by the board that the member meets the definition contained in section 31-31-801 (3.2) or to a total disability upon a finding by the board that the member meets the definition contained in section 31-31-801 (4). After the five-year period, benefits shall cease unless the member has been upgraded to either permanent occupational disability or total disability.    A member whose disability benefits cease and who is not restored to active service or a member who elects to terminate his or her disability benefits shall be entitled to:   Any vested benefit earned through his or her years of service prior to becoming disabled, payable at normal retirement age; or    A refund of the member's contributions if no benefit is vested.                     Notwithstanding any other provision of this section, no benefits shall be payable for any disability resulting in whole or in part from:   Addiction to a controlled substance, the use of which is prohibited in article 18 of title 18, C.R.S.;    Engaging in any act for which the member has been convicted of a felony; or    An intentionally self-inflicted injury.       For purposes of this subsection (3), “addiction” shall have the same meaning as set forth in part 8 of article 245 of title 12 and “controlled substance” shall have the same meaning as set forth in part 2 of article 80 of title 27.           The determination of disability, whether occupational or total or whether on-duty, shall be made by the board, and the board shall consider reports to be made by a panel of three physicians who shall be appointed by the board upon the recommendation of a medical advisor with whom the board shall contract to provide advisory services and any other evidence the board deems relevant. The board shall not make a determination of disability unless two of the three physicians examining the applicant agree that a disability exists, but the board shall not be bound by the physicians' determination that a disability exists. (a) (I)The determination of disability, whether occupational or total or whether on-duty, shall be made by the board, and the board shall consider reports to be made by a panel of three physicians who shall be appointed by the board upon the recommendation of a medical advisor with whom the board shall contract to provide advisory services and any other evidence the board deems relevant. The board shall not make a determination of disability unless two of the three physicians examining the applicant agree that a disability exists, but the board shall not be bound by the physicians' determination that a disability exists.    The board may consider any relevant evidence, including medical evidence, in making its determination regarding the origin of an applicant's disability and may request that the three physicians appointed by the board to examine the applicant also provide an opinion as to whether the applicant's injury was received while performing official duties or whether the applicant's occupational disease arose out of and in the course of the applicant's employment.    In all cases under this subsection (4), section 31-31-805, or section 31-31-806.5, the board:   May appoint hearing officers who are experienced in disability matters to conduct hearings and make findings and recommendations to the board on any issue relating to an applicant's disability;    May adopt rules to establish a process for the administrative approval of disability applications, including standards of review for the applications, without board review; and    Shall take any final action that constitutes a denial of a disability application or a reduction of a benefit.          The board shall have the authority to investigate claims for disability retirement benefits at the time of initial application for benefits or subsequent to an award of benefits in order to determine eligibility or continuing eligibility for such benefits. The board shall appoint such investigators and other personnel as may be necessary to carry out this function. No investigation of a member who has been awarded a disability retirement shall be pursued if more than five years has elapsed since the date of the award.    If the board determines that an applicant for retirement for disability is not disabled and the applicant is on sick leave, disability leave, or other type of leave of absence, is serving in a temporary position pending the determination of an application, or has been terminated from employment by the employer on the basis of an alleged disability, the employer shall reinstate the applicant to active service in the same position the applicant held prior to the commencement of such leave, assignment to a temporary position, or termination. If the employer refuses to reinstate the applicant to the applicant's prior position, the employer shall thereafter pay benefits to the applicant as if the applicant had been determined occupationally disabled by the board. The employer shall continue to pay such benefits until the applicant is reinstated to the applicant's prior position or declines an offer of reinstatement.         Any member who is awarded a total disability pension or a permanent occupational disability pension under this section or section 31-31-806.5 shall be eligible to receive the applicable normal disability pension provided in this section or to make an election for a reduced pension in the manner provided in this section.      If, after making the election of a normal disability pension, an unmarried member who receives a single life annuity at the time benefits commence and whose marital status changes as the result of marriage or remarriage shall be eligible to change the member's original election to take a reduced pension in the same manner as the original election authorized in paragraph (a) of this subsection (5) within one hundred eighty days of the date of the marriage or remarriage or January 1, 2008, whichever date is later. If, after such selection of a different payment option, the member subsequently dies within one hundred eighty days following the marriage or remarriage, the only survivor benefit payable to the member's designated beneficiary shall be the difference between the single life option amount payable to the member prior to marriage or remarriage and the amount of the reduced benefit that was actually paid to the deceased member after the marriage or remarriage and prior to the member's death. (b) (I) If, after making the election of a normal disability pension, an unmarried member who receives a single life annuity at the time benefits commence and whose marital status changes as the result of marriage or remarriage shall be eligible to change the member's original election to take a reduced pension in the same manner as the original election authorized in paragraph (a) of this subsection (5) within one hundred eighty days of the date of the marriage or remarriage or January 1, 2008, whichever date is later. If, after such selection of a different payment option, the member subsequently dies within one hundred eighty days following the marriage or remarriage, the only survivor benefit payable to the member's designated beneficiary shall be the difference between the single life option amount payable to the member prior to marriage or remarriage and the amount of the reduced benefit that was actually paid to the deceased member after the marriage or remarriage and prior to the member's death.    The newly elected pension shall be recalculated as the actuarial equivalent of the remainder of the original pension for which the member would otherwise have been eligible if the member had not changed the original election.            The benefits payable under the statewide death and disability plan established in this part 8 shall be redetermined effective October 1 each year, and such redetermined amount shall be payable for the following twelve months. To be eligible for redetermination, such benefits shall have been paid for at least twelve calendar months prior to the effective date of redetermination. The annual redetermination of benefits made pursuant to this section shall be in lieu of any other annual cost of living adjustment.      For the redetermination of occupational disability benefits payable pursuant to subsections (2), (2.1), and (2.2) of this section and section 31-31-806.5, the amount of the benefit on the effective date of the benefit shall be increased by a percentage to be determined by the board but not more than three percent for each full year contained in the period commencing with the effective date of the benefit and ending with the effective date of the redetermination. (b) (I) For the redetermination of occupational disability benefits payable pursuant to subsections (2), (2.1), and (2.2) of this section and section 31-31-806.5, the amount of the benefit on the effective date of the benefit shall be increased by a percentage to be determined by the board but not more than three percent for each full year contained in the period commencing with the effective date of the benefit and ending with the effective date of the redetermination.    For the redetermination of total disability benefits payable pursuant to subsection (1) of this section and section 31-31-806.5, the amount of the benefit on the effective date of the benefit shall be increased by three percent for each full year contained in the period commencing with the effective date of the benefit and ending with the effective date of the redetermination.       The cost of the adjustment of benefits provided by this section shall be funded in the same manner as other benefits established by this part 8.         The benefits payable under this section or section 31-31-806.5 to any member who is awarded an occupational disability prior to October 1, 2002, a total disability, or who is permanently occupationally disabled and who is also eligible to receive payments from the member's separate retirement account pursuant to section 31-31-406 or a similar provision in a local pension plan shall be reduced by an amount that is the actuarial equivalent of the benefits such member is eligible to receive from the separate retirement account, whether the benefits received from the account are paid on a periodic basis or in a lump sum.    The benefits payable under this section or section 31-31-806.5 to any member who is awarded a total disability or who is permanently occupationally disabled and who is also eligible to receive a defined benefit from a statewide or local pension plan shall be reduced by the amount of the defined benefit.         A member eligible for a permanent occupational disability benefit under subsection (2.1) of this section or a permanent occupational disability benefit under section 31-31-806.5 may elect to receive one of the following disability benefit options in lieu of such disability benefit:   Option 1. A reduced annual disability benefit payable to the member and, upon the member's death, all of such reduced annual disability benefit to be paid to the member's designated beneficiary for life;    Option 2. A reduced annual disability benefit payable to the member and, upon the member's death, one-half of such reduced annual disability benefit to be paid to the member's designated beneficiary for life; or    Option 3. A reduced annual disability benefit payable to the member and, upon the member's death, all of such reduced annual disability benefit to be paid to the member's surviving spouse and dependent children, if any, until the death of the surviving spouse, the death of any adult dependent child found to be incapacitated by the board, or until the youngest child, regardless of marital status, reaches twenty-three years of age, whichever is later.       A member shall be deemed to have elected option 3 specified in subparagraph (III) of paragraph (a) of this subsection (8) if the member is awarded a permanent occupational disability benefit under subsection (2.1) of this section or an occupational disability benefit under section 31-31-806.5, is survived by a spouse or dependent child, and dies before making an election allowed under paragraph (a) of this subsection (8).       After an election has been made of any of the options provided in paragraph (b) of subsection (1) or paragraph   of subsection (8) of this section, the election shall be irrevocable when the first disability benefit payment has been deposited or otherwise negotiated by the member or sixty days after the date of issuance of the check, whichever occurs first. The member's beneficiary designation shall also be irrevocable at such time unless the member's marital status changes as a result of dissolution of marriage, death of a beneficiary, marriage, or remarriage or in the event of the death of a beneficiary. In such case, the member may designate a new beneficiary; except that, in cases of dissolution of marriage, this subsection (9) shall only apply to any final dissolution of marriage decree of a member entered on or after July 1, 1990.       The joint disability benefit provided in this section shall be calculated as the actuarial equivalent of the normal annual disability benefit otherwise payable as provided in this section. In the event of a change in the beneficiary designation pursuant to subsection (9) of this section, the joint disability benefit payable shall be recalculated so as to be the actuarial equivalent of the remainder of the original disability benefit based upon the member's initial beneficiary designation, if any.    Repealed.    Notwithstanding any limitation provided under article 80 of title 13, C.R.S., or any other applicable limitation, any application for disability must be filed by the member no later than one hundred eighty days after the last day on the payroll under which disability coverage under this section is provided.    Within the application for disability benefits, a member may irrevocably elect not to be considered for reinstatement in the event that such member becomes eligible. Any such election shall terminate any obligation for reinstatement by the employer.    Within the application for disability benefits, the employer shall:   Make a statement indicating the reason for the member's separation from employment; and    State any additional basis for disability under the death and disability program which the employer believes exists and include any documentation of relevant medical evidence. In the event the member's disability ceases to exist and the member becomes eligible to be restored to active service pursuant to section 31-31-805 (2), the member may be considered for a continuing disability by the board with regard to the additional basis provided by the employer. The consideration shall be conducted as if the member had filed an original application; except that limitation periods under section 31-31-805 (2) shall accrue from the date of the original disablement. If the member fails to be examined with regard to the additional basis, the member shall be entitled to neither reinstatement nor continuing disability benefits.        History. Source: L. 96: Entire article added with relocations, p. 927, § 1, effective May 23; (7) added, p. 1339, § 2, effective June 1; IP(1), IP(2), (4)(a), and (5)(a) amended, pp. 316, 317, §§ 4, 5, effective November 17. L. 97: (1)(c) and (2)(c) added, p. 196, §§ 1, 2, effective August 6. L. 99: (1) amended, p. 20, § 1, effective January 1, 2000; (5) amended and (8), (9), (10), and (11) added, p. 40, § 1, effective January 1, 2000. L. 2000: (9) amended, p. 50, § 1, effective August 2; (11) repealed, p. 1866, § 90, effective August 2. L. 2001: (1)(a), (2), (4)(a)(II), and (9) amended and (4)(a)(III) added, p. 421, § 10, effective June 1. L. 2002: (1)(b)(III), IP(2)(a), (4)(a)(I), (5)(a), (6), (7), IP(8)(a), (8)(a)(III), and (8)(b) amended and (2.1), (2.2), (12), (13), and (14) added, p. 175 § 4, effective October 1. L. 2005: (8)(b) amended, p. 777, § 65, effective June 1. L. 2007: (5)(b)(I) amended, p. 51, § 2, effective March 14; (1)(a)(I)(A), (2)(a)(I), (2.1)(a)(I), (2.2)(a)(I), and (7) amended, p. 269, § 1, effective March 29. L. 2009: (1)(a)(II), (1)(b)(III), (1)(d), (2)(b)(III), (7)(b), and (8)(a)(III) amended,(SB 09-017), ch. 53, p. 188, § 2, effective March 25. L. 2012: (3)(b) amended,(HB 12-1311), ch. 281, p. 1630, § 80, effective July 1; (1)(a)(I)(A), (2)(a)(I), (2.1)(a)(I), and (2.2)(a)(I) amended,(HB 12-1018), ch. 24, p. 64, § 4, effective August 8. L. 2013: (3)(b) amended,(HB 13-1300), ch. 316, p. 1695, § 101, effective August 7. L. 2019: (3)(b) amended,(HB 19-1172), ch. 136, p. 1720, § 219, effective October 1.    Editor's note:   This section was formerly numbered as § 31-30-1007 (1) , (2)(a), (2.5), (4), and (5).   ANNOTATION   Annotator's note. Since § 31-31-803 is similar to § 31-30-1007 as it existed prior to the 1996 amendment that relocated parts 3 through 10 of article 30, relevant cases construing the provisions of that section have been included in the annotations to this section.   District court or reviewing court should not substitute its own judgment as to the weight of the evidence for that of the board. Ross v. Fire & Police Pension Ass'n, 682 P.2d 496 (Colo. App. 1984), aff'd, 713 P.2d 1304 (Colo. 1986).   Statute provides that board is not bound by physicians' determinations on whether disability exists and, therefore, board did not abuse its discretion in denying disability application even through two of the reexamining physicians found the applicant to have a disability. Ross v. Fire & Police Pension Ass'n, 682 P.2d 496 (Colo. App. 1984), aff'd on other grounds, 713 P.2d 1304 (Colo. 1986).   Eligibility of plaintiff for occupational disability benefits where medical opinions of physicians panels conflicted was a question for the board to determine and, since competent evidence supported board's denial of benefits, court of appeals was correct in reinstating board's decision. Ross v. Fire & Police Pension Ass'n, 713 P.2d 1304 (Colo. 1986).   Limitations imposed by the amendment providing that investigation of a member shall not be pursued when more than five years have elapsed since the date of the award, must be pleaded and proved as an affirmative defense. Kilbourn v. Fire and Police Pension Ass'n, 971 P.2d 284 (Colo. App. 1998).