CO Code § 31-30.5-705 (2021)
2021 Colorado Code|Title 31 - Government - Municipal|Article 30.5 - Fire - Police - Old Hire Pension Plans|Part 7 - Disability and Survivor Benefits|§ 31-30.5-705. Firefighters' Old Hire Pension Plans - Municipalities of at Least One Hundred Thousand in Population

  Any old hire member of a fire department in a municipality having a population of at least one hundred thousand, who becomes mentally or physically disabled while on active duty during regularly assigned hours of duty from any cause not self-inflicted nor due to the habitual use of intoxicants or drugs to an extent whereby the member is unable to perform the member's duties shall be retired by the board. Any old hire member of said fire department who has completed five years or more as a member of the department but who is unable to perform the member's duties by reason of heart disease or any disease of the lungs or respiratory tract shall be presumed, unless said presumption is overcome by competent evidence, to have contracted said disease while on active duty as a result of strain or the inhalation of noxious fumes, poison, or gases and shall be retired by the board.    In cases where a special position or assignment can or may be assigned to such member, the member may be assigned to such special position or assignment. Any such retirement shall be for the period of the disability, and no longer, and shall be governed by the provisions of subsections (3), (4), and (5) of this section.    The old hire member shall be paid a monthly pension equal to one-half the amount of the member's monthly salary as of the date of the member's retirement plus one-half of any increase in salary and longevity or additional pay based on length of service granted during the period of the member's retirement to the rank occupied by the member in the department. The member, after retirement, shall continue to accrue longevity, and the member's length of service shall continue to extend in the same manner and with the same limitations as if the member were still active and not retired. Said pension shall continue to be paid as long as the member is in retirement.    All applicants for disability pensions shall be examined by one or more physicians selected for the purpose by the board and may be examined by one or more physicians selected by the applicant. All expenses of examination by the physician chosen by the board shall be paid by the board out of said fund.    The board shall establish such general rules as it deems proper for the purpose of reexamination of all old hire members who have been retired for disability to determine from time to time the fitness of such members to return to active duty in the department. No such member who has reached the age of fifty years, either before or after the member's retirement, shall be reexamined. No such member who has completed twenty-five years of active duty in the department before the date of such retirement shall be reexamined. No member on the retired list shall be examined sooner than one year after date of retirement and not more often than once a year thereafter. In the event it is found by the board that any old hire member on the retired list has recovered from the disability that caused the member's retirement, such member, if the member is under fifty years of age and has served less than twenty-five years of active duty, shall be removed from the retired list and ordered to report to the chief officer of the fire department within thirty days for assignment to active duty. During said period of thirty days such member may file a written protest in which the member shall state any objection that the member may have to the member's removal from the retired list. The decision of the board shall be suspended pending a hearing on said protest, at that hearing the member shall have a right to appear and to be represented by counsel. During the period that any member is ordered retired for disability by the board, such member, if under the age of fifty years and having served less than twenty-five years of active duty, shall be carried on a special roll of the fire department and listed as inactive.    In any case where an old hire member of the fire department in a municipality having a population of at least one hundred thousand becomes mentally or physically disabled while not on active duty during regularly assigned hours of duty and from any cause not self-inflicted or due to the habitual use of intoxicants or drugs to an extent whereby the member is unable to perform the member's regular fire department duties, the member shall be paid by the board, during the period of such disability and no longer, a monthly benefit equal to five percent of the amount set forth in subsection (3) of this section multiplied by the number of years the member has been in active service with the fire department; except that any such benefit under this section shall not exceed one-half of the member's monthly salary as of the date of the member's disability. The provisions covering examinations and reexaminations, as set forth in subsections (4) and (5) of this section, shall be applicable to all cases arising under this subsection (6).    If any old hire member of a fire department in a municipality having a population of at least one hundred thousand dies from any cause while in the service or while on the retired list, leaving a surviving spouse, such surviving spouse shall be awarded a monthly annuity equal to one-third of the monthly salary of such member at the time of the member's death or retirement plus one-third of any increase in salary and longevity or additional pay based on length of service granted to firefighters of the rank or comparable successor rank that the member held in the department on the date of the member's death or retirement so long as such surviving spouse remains unmarried. No dissolution of a subsequent marriage shall have the effect of reinstating said spouse on the pension roll or authorizing the granting of a pension. This section shall apply alike to surviving spouses of firefighters and retired firefighters who die after April 11, 1947, and to surviving spouses of firefighters and retired firefighters who were dead on said date, it being the intent of the general assembly to provide an annuity for all surviving spouses of firefighters, which annuity shall increase or decrease proportionately to any increase or decrease in the current rate of pay of firefighters.    The board shall also order the payment to such surviving spouse or the legally appointed guardian of each child of such deceased old hire member of the fire department a monthly annuity of thirty dollars for each child, to continue until such child reaches the age of eighteen years. If such surviving spouse dies or there is no surviving spouse as limited and described but such deceased old hire member leaves surviving children under eighteen years of age, the board shall order a monthly payment equal to the full payment to which a firefighter's surviving spouse is entitled under subsection (7) of this section to be divided equally among the children or a monthly payment of thirty dollars for each child, whichever total amount is greater, to the guardian of the children for the children. In no event shall such surviving children of a deceased or retired firefighter receive an amount in excess of one-half of the current salary paid to a firefighter, first-grade, of said department.    When an active or retired firefighter dies without necessary funeral expenses, the board shall appropriate from the fund a sum not exceeding one hundred dollars to the surviving spouse or family or other person paying the expenses for the purpose of assisting the proper final disposition of the deceased old hire member.     History. Source: L. 96: Entire article added with relocations, p. 887, § 1, effective May 23. L. 2021: (9) amended,(SB 21-006), ch. 123, p. 500, § 29, effective September 7.    Editor's note:    Provisions of this section were formerly numbered as §§ 31-30.5-508 (1) to (6), 31-30-509, 31-30-510, and 31-30-512.    Section 31 of chapter 123 (SB 21-006), Session Laws of Colorado 2021, provides that the act changing this section applies to final dispositions of human remains or human fetuses made on or after September 7, 2021.     ANNOTATION   Annotator's note. Since § 31-30.5-705 is similar to §§ 31-30-509 and 31-30-510 as they existed prior to the 1996 amendment that relocated parts 3 through 10 of article 30, relevant cases construing those sections have been included in the annotations to this section.   If widow remarries, dependent child is not entitled to increased benefits. It was not the intention of the general assembly that, when a fireman entitled to pension died leaving a wife and dependent child, the dependent child should be entitled to increased benefits upon the remarriage of the widow. Shearer v. Bd. of Trustees of Firemen's Pension Fund, 121 Colo. 592 , 218 P.2d 753 (1950).   Discrimination against common-law spouse unconstitutional. The provision of this section which distinguishes between common-law and statutory marriages, is unconstitutional, as benefits may not be denied a surviving common-law spouse. Carter v. Firemen's Pension Fund, 634 P.2d 410 (Colo. 1981).   Restriction of payments to surviving spouse married to employee previous to employee's retirement application held unconstitutional. Restriction defining surviving spouse as one “whom such officer, member, or employee married previous to his application for retirement or previous to April 5, 1945” is unconstitutional and may not be applied. Branson v. City & County of Denver, 707 P.2d 338 (Colo. 1985).   Remarried widow cannot declare a child an orphan and get increased benefits. A surviving child whose mother or stepmother also survives does not become entitled to additional benefits under this section upon the remarriage of the mother or stepmother, although she, on remarrying, declares the child an orphan. Shearer v. Bd. of Trustees of Firemen's Pension Fund, 121 Colo. 592 , 218 P.2d 753 (1950).   Applied in Carter v. Firemen's Pension Fund, 634 P.2d 410 (Colo. 1981).