CO Code § 31-31-805 (2021)
2021 Colorado Code|Title 31 - Government - Municipal|Article 31 - Fire - Police - New Hire Pension Plans|Part 8 - Disability and Survivor Benefits|§ 31-31-805. Change in Disability Status - Reexamination

  At any time that a total disability, including an on-duty disability pursuant to section 31-31-806.5 (1), ceases to exist, based upon periodic reexamination as may be required by the board or based upon other evidence of ability to engage in substantial gainful activity, a member retired for such disability shall be declared permanently occupationally disabled, and the benefits provided by section 31-31-803 (1) or 31-31-806.5 (1) shall be reduced to the level provided in section 31-31-803 (2.1). The five-year limitation on investigations contained in section 31-31-803 (4)(b) shall not be applicable to the enforcement of this subsection (1).      At any time that an occupational disability, including an on-duty disability pursuant to section 31-31-806.5 (2), ceases to exist, based upon periodic reexamination as may be required by the board, a member retired for such disability may be restored to active service, and the benefits provided by section 31-31-803 or 31-31-806.5 (2) shall be discontinued. The member shall be restored to active service by the member's former employer if a vacancy exists in the same position the member held prior to retirement, or if there is a position of equal base pay available, or if the member agrees to accept another available position that may not be the same or of equal base pay to the member's former position.    In addition, if the position to which the member will be restored requires, as a matter of state law, that the member maintain any type of state certification, the employer need not restore the member to such position if the member does not have the necessary certification or the member's certification has otherwise lapsed, expired, or been revoked. The employer, however, must afford the member an opportunity to attain certification, recertification, or reactivation of an existing certification and must hold open any position that the member has agreed to accept pursuant to this subsection (2) for a period not to exceed one year. The board is directed to evaluate the impact of this requirement on employers of association members. The one-year period may extend beyond the five-year limitation set forth in paragraph (f) of this subsection (2), as long as the opening occurs within the five-year period. Disability benefits will be continued during any period, not to exceed one year, that the member is attempting to attain certification, recertification, or reactivation.    If, at the time of a board finding that a member's occupational disability has ceased to exist, there is no opening in the same position the member held prior to retirement or one of equal base pay and there is no opening in a position of lesser base pay that the member agrees to accept, the board may order the member to proceed with any necessary training in order to attain, reinstate, or reactivate any certification required for the position from which the member retired. Disability benefits shall be continued during the training period up to a maximum of one year.    If the member refuses to take the steps necessary to attain certification, recertification, or reactivation as required by paragraphs (b) and (c) of this subsection (2), or if at the end of the one-year limitation on attaining certification, recertification, or reactivation the member has not attained the necessary certification, recertification, or reactivation, disability benefits shall be discontinued, and the employer shall be relieved of further obligations pursuant to this subsection (2).    If a member refuses to accept the same or a position of equal base pay, the benefits provided by section 31-31-803 shall be discontinued, but a member shall not lose benefits if there is no such vacancy or if the member refuses to accept a position that is not the same or of equal base pay to the member's former position, or if the employer refuses to restore the member to active service, except as provided pursuant to paragraph (b) of this subsection (2).    If at least two members of the three-member physician panel examining the member agree that an occupational disability ceases to exist, if the board determines that such disability ceases to exist, and if no appropriate vacancy is available at that time, the member shall have the first right of refusal to fill such a vacancy if it occurs within five years from the date of original disablement. In the event an occupational disability is based on a medical determination of mental impairment or disease, all three members of the physician panel must agree, and the board must determine, that the occupational disability ceases to exist before the member is granted such first right of refusal.    At least thirty days prior to making its determination, the board shall provide written notice to the employer and member of the agreement of the appropriate number of physicians and of the opportunity for a hearing, upon request of the employer or member, before the board. If a hearing is requested, the board shall provide the employer with copies of the medical reports prepared by the physician panel with respect to any examination or reexamination of the member. Neither the employer, the agents of the employer, including any physician retained to review such reports, nor the association shall release such reports to any other person except as otherwise allowed pursuant to section 24-72-204 (3)(a)(I), C.R.S.    If the member refuses a vacancy in the same position the member held prior to retirement or in a position of equal base pay to the member's former position, the benefits provided by section 31-31-803 shall be discontinued. Except as otherwise provided pursuant to this subsection (2), if the employer refuses to allow a member who exercises such first right of refusal to fill the vacancy, the employer shall thereafter pay the cost of the benefits provided by section 31-31-803.    When a temporary occupational disability ceases to exist and the member is restored to active service with the member's employer, a transfer will be made from the statewide death and disability plan to the member's normal retirement plan in the amount of the monthly employer and employee contributions being made to the member's pension plan at the time of disability but not more than sixteen percent of the monthly base salary that the member was being paid at the time of disability retirement, multiplied by the number of months the member received temporary occupational disability benefits. The member will receive service credit for such transfer. A restored member of a local plan which has a contribution rate in excess of sixteen percent shall have the difference between the amount transferred and the amount that would have been contributed at the excess rate, made up by an additional contribution from the employer. (2.5) When a member on temporary occupational disability satisfies the age and service requirements for a normal retirement, including the time the member was on temporary occupational disability, a transfer shall be made from the statewide death and disability plan to the member's normal retirement plan in the amount of the monthly employer and employee contributions being made to the member's pension plan at the time of disability but not more than sixteen percent of the monthly base salary that the member was being paid at the time of disability retirement, multiplied by the number of months the member received temporary occupational disability benefits. A member of a statewide or local retirement plan that has a mandatory contribution rate in excess of sixteen percent shall have the difference between the amount transferred and the amount that would have been contributed at the excess rate made up by an additional contribution from the employer. The member shall then be granted a normal retirement under the member's normal retirement plan and the temporary occupational disability benefits under the statewide death and disability plan shall terminate.       Within five years from the date of a board finding of occupational disability pursuant to subsection (1) of this section or from the date of original disablement pursuant to section 31-31-803 (2), (2.1), or (2.2), a member retired for such disability may be declared totally disabled based upon periodic reexamination as ordered by the board in its discretion. If the member is declared totally disabled, the benefits provided by section 31-31-803 (2), (2.1), or (2.2) shall be increased to the level provided in section 31-31-803 (1).      History. Source: L. 96: Entire article added with relocations, p. 930, § 1, effective May 23; (1) and (2)(a) amended, p. 318, § 6, effective November 17. L. 2002: (1), (2)(e), (2)(h), and (3) amended and (2)(i) and (2.5) added, pp. 179, 180, §§ 6, 7, effective October 1. L. 2009: (2.5) amended,(SB 09-017), ch. 53, p. 191, § 5, effective March 25. L. 2016: (2)(i) and (2.5) amended,(HB 16-1028), ch. 25, p. 59, § 1, effective August 10.    Editor's note:   Provisions of this section were formerly numbered as § 31-30-1007 (1.5), (2)(b), and (2)(c).   ANNOTATION   Annotator's note. Since § 31-31-805 is similar to § 31-30-1007 as it existed prior to the 1996 amendment that relocated parts 3 through 10 of article 30, a relevant case construing the provisions of that section has 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).   Before discontinuing an employee's occupational disability payments, there is no need for a physician to examine the former employee if the physician's sole purpose would be to determine whether the employee could perform the duties which he was already performing in his job. Kilbourn v. Fire and Police Pension Ass'n, 971 P.2d 284 (Colo. App. 1998).