NM Stat § 10-11-10.1 (2021)
2021 New Mexico Statutes|Chapter 10 - Public Officers and Employees|Article 11 - Retirement of Public Officers and Employees Generally|Section 10-11-10.1 - Disability retirement.

A. There is created a "disability review committee" of the retirement board. The disability review committee shall consist of at least three but not more than five retirement board members and at least one physician licensed in New Mexico appointed by the retirement board. The disability review committee shall review all applications for disability retirement, review reports required under this section and approve or deny applications for disability retirement. B. The disability review committee may retire a member on account of disability before the time the member would otherwise be eligible for retirement if the following requirements are satisfied: (1) the member applying for disability retirement was a member at the time the disability was incurred; (2) a written application for disability retirement, in the form and containing the information prescribed by the association, has been filed with the association by the member or by the member's affiliated public employer; (3) employment is terminated within forty-five days of the date of approval of the application for disability retirement; (4) if: (a) the member has the applicable minimum number of years of service credit required for normal retirement. For the purposes of this subparagraph, "service credit" means only the service credit earned by the member during periods of employment with an affiliated public employer; or (b) the disability review committee finds the disability to have been the natural and proximate result of causes arising solely and exclusively out of and in the course of the member's performance of duty with an affiliated public employer; (5) the member submits to all medical examinations and tests and furnishes copies of all medical reports requested by the association or disability review committee; provided that if the disability review committee requires independent medical or other examinations, those examinations shall be performed at the association's expense; and (6) the disability review committee makes the determination required under Subsection C of this section. C. The disability review committee shall review applications for disability retirement to determine whether: (1) if the member is a currently employed, contributing employee of an affiliated public employer: (a) the member is mentally or physically totally incapacitated for continued employment with an affiliated public employer; and (b) the incapacity is likely to be permanent; or (2) if the member is not a currently employed, contributing employee of an affiliated public employer: (a) the member is mentally or physically totally incapacitated for any gainful employment; and (b) the incapacity is likely to be permanent. D. The disability retirement pension shall be paid for a period of one year after approval of the initial application unless the disability review committee for good cause shown grants disability retirement for a longer period of time. After approval, payment shall be effective commencing the first of the month following submission of the initial application and termination of employment. E. At the end of the first year that a disability retirement pension is paid, the disability retired member's condition shall be reevaluated to determine eligibility for continuation of payment of a disability retirement pension. If the disability retired member has applied for disability benefits under the federal social security program, the member shall submit copies of the member's application. The association shall continue payment of the state disability retirement pension if the disability retired member presents a written final determination from the federal social security administration that the disability retired member qualifies, based on the same conditions as presented in the application for a state disability retirement pension, for federal disability benefits. F. If the disability retired member applied for federal disability benefits within thirty days of receiving approval for a state disability retirement pension but the federal social security administration has not made a written final determination of entitlement by the end of the first year that the disability retired member has received a state disability retirement pension, eligibility for continued payment of the state disability retirement pension shall be determined by the disability review committee. The state disability retirement pension shall be discontinued if the disability review committee finds that the disability retired member is capable of any gainful employment. G. The disability retired member shall notify the association of the federal social security administration's final determination within fifteen working days of the date of issuance of the final written determination. If the federal social security administration denies federal disability benefits, the state disability retirement pension shall be discontinued effective the first of the month following the month in which the written final determination of the federal social security administration was issued. If the federal social security administration grants federal disability benefits, the state disability retirement pension shall be continued so long as the disability retired member provides annually, on or before the anniversary date of commencement of payment of the state disability retirement pension, written evidence of continuation of payment of federal disability benefits. If the disability review committee has denied continuation of payment of a state disability retirement pension and the disability retired member is later granted federal disability benefits, the state disability retirement pension shall be reinstated effective the first of the month following the month in which the state disability retirement pension was discontinued. H. If, at the time of reevaluation under Subsection E of this section, the disability retired member has applied for and has qualified for federal disability benefits, but for a different condition than was reviewed by the disability review committee, the disability review committee shall review the disability retired member's condition as described by the application for federal disability benefits. The process set forth in Subsection I of this section shall be followed to determine whether payment of a state disability retirement pension should be continued. I. If the disability retired member is not eligible to apply for federal disability benefits or is not a member of the federal social security program, the disability review committee annually shall determine eligibility for continuation of payment of a state disability retirement pension. To make its determination of continued entitlement, the disability review committee shall use the guidelines established by the federal social security administration for determination of eligibility for federal disability benefits. The determination shall be based on: (1) the medical and all other information provided by the disability retired member; (2) at least one independent medical or other examination performed at the association's expense if required by the disability review committee; and (3) any medical, vocational or other information related to the disability compiled during the period of disability by any medical or other practitioner consulted by the disability retired member regarding the disability which was not paid for by the association. J. Each disability retired member annually shall submit to the association, prior to July 1, a statement of earnings from gainful employment during the preceding calendar year. The statement of earnings shall be in the form prescribed by the association. Payment of the state disability retirement pension shall be discontinued if the amount of earnings from gainful employment is one hundred percent or more of the amount that causes a decrease or suspension of an old age benefit under the federal social security program, or fifteen thousand dollars ($15,000), whichever is less. Payment of the state disability retirement pension shall be discontinued starting with the month of July if the statement of earnings is not received by the association prior to July 1. K. Upon prior approval by the association, a disability retired member may return to employment with an affiliated public employer or other employer for a trial period not to exceed one hundred twenty calendar days without becoming a member or causing suspension or discontinuation of payment of a state disability retirement pension. If the trial period of employment is successfully completed, payment of the disability retirement pension shall be discontinued beginning the first of the month following the one hundred twentieth day of the trial period of employment. Trial periods of employment shall be limited to two in any five-year period following disability retirement. L. If the disability retired member meets the minimum age and service credit requirements for normal retirement while receiving a disability retirement pension, the disability retirement pension shall be reclassified by the association as a normal retirement pension and no further determinations of eligibility for continuation of payment of the disability retirement pension shall be made. Upon reclassification as a normal retirement pension, all the provisions of the Public Employees Retirement Act regarding normal retirement shall be applicable. M. If the disability review committee found the disability to be the natural and proximate result of causes arising solely and exclusively out of and in the course of the member's employment with an affiliated public employer, service credit shall continue to accrue during the disability retirement period as though the disability retired member was actively employed. N. The amount of a disability retirement pension shall be calculated according to the provisions of the coverage plan applicable to the member at the time of application, except that the service credit requirement shall be waived and the actual amount of service credit shall be used instead. If the disability is the natural and proximate result of causes arising solely and exclusively out of and in the course of the member's performance of duty for an affiliated public employer, the amount of disability retirement pension shall be calculated according to the provisions of the coverage plan applicable to the member, imputing the amount of service credit necessary to meet the minimum service credit requirements for normal retirement. O. For the purposes of this section, the following definitions apply: (1) "continued employment with the affiliated public employer" means the ability of the member to fulfill the required duties of the position in which the member was last employed by an affiliated public employer; (2) "gainful employment" means remunerative employment or self-employment that is commensurate with the applicant's background, age, education, experience and any new skills or training the applicant may have acquired after terminating public employment or incurring the disability; (3) "state disability retirement pension" means the pension paid pursuant to the provisions of this section; and (4) "federal disability benefits" means those benefits paid by the federal social security program. History: Laws 1993, ch. 160, § 3; 2013, ch. 225, § 6. ANNOTATIONSThe 2013 amendment, effective July 1, 2013, clarified how service credit will be calculated for disabled members; increased the vesting period; in Subparagraph (a) of Paragraph (4) of Subsection B, in the first sentence, after "the member has", deleted "five or more" and added "the applicable minimum number of", and after "service credit", added "required for normal retirement", and added the second sentence. Severability. — Laws 2013, ch. 225, § 93 provided that if any part or application of Laws 2013, ch. 225 is held invalid, the remainder or its application to other situations or persons shall not be affected. Retirement due to disability. — The requirement that an employee have one and one-half years earned service credit to qualify for payment under coverage plan 3 supplements the service credit requirements for normal requirement and does not apply to employees who apply for early retirement due to a disability. Garcia-Montoya v. Pub. Emps. Ret. Bd., 2006-NMCA-094, 140 N.M. 175, 140 P.3d 1124. The operative date for determining an applicant's membership status for purposes of disability retirement benefits is the date disability was incurred. Gonzales v. N.M. Pub. Emps. Ret. Ass'n, 2009-NMCA-109, 147 N.M. 201, 218 P.3d 1249. Membership status is determined as of the date disability was incurred. — Where petitioners were currently employed, contributing members at the time their disabilities were incurred, and petitioners were currently employed but not contributing members at the time they applied for disability retirement benefits, the operative date for determining petitioners' status for purposes of disability retirement benefits was the date disability was incurred and petitioners were required to demonstrate total physical and mental incapacity for continued employment with an affiliated public employer, but not total physical and mental incapacity for any gainful employment. Gonzales v. N.M. Pub. Emps. Ret. Ass'n, 2009-NMCA-109, 147 N.M. 201, 218 P.3d 1249. Public employee retirement board's decision denying duty-related benefits arbitrary and capricious. — In an appeal from the denial of disability retirement benefits where the parties did not dispute that petitioner was disabled and that her disability was solely and exclusively a result of her work, and where the hearing officer recommended finding that a preponderance of evidence supported a finding that no pre-existing condition was a significant contributing factor material to petitioner's disability, the public employee retirement board's (board) contrary finding that a pre-existing condition had not been resolved and decision denying duty-related disability benefits was arbitrary and capricious, because the board violated its own regulation by failing to review the record before the hearing officer prior to modifying a proposed finding of fact, failed to provide a reasoned basis for its new findings of fact, and failed to consider contrary evidence, and the board's new findings had no rational basis in light of the whole record. Vigil v. Public Emp. Ret. Bd., 2015-NMCA-079, cert. denied, 2015-NMCERT-008. Meaning of "gainful employment" in regard to geographic area. — In order to be entitled to disability retirement benefits, an employee must establish that no "gainful employment" is attainable within the State of New Mexico, unless the employee presents substantial evidence that the application of this statewide standard to the employee is unreasonable. Talamante v. N.M. Pub. Emps. Ret. Bd., 2006-NMCA-032, 139 N.M. 226, 131 P.3d 76. "Commensurate" employment. — The board failed to comply with the requirements of this section in evaluating claimant's application for disability benefits, because it failed to factually determine whether the work he was able to perform was substantially "commensurate", in terms of remuneration with the work he was performing at the time of his disability or would have been capable of performing, absent the disability. Johnson v. Pub. Emps. Ret. Bd., 1998-NMCA-174, 126 N.M. 282, 968 P.2d 793, cert. denied, 126 N.M. 532, 972 P.3d 351. Return for "trial period". — A disability annuitant retired under the provisions of the Public Employees Retirement Act in effect before July 1, 1987, could return to employment for a "trial period" pursuant to Subsection D of former Section 10-11-11 NMSA 1978 (see now Subsection K). 1988 Op. Att'y Gen. No. 88-44. Suspension of benefits when member capable of resuming gainful employment. — To construe Subsection C of former 10-11-11 NMSA 1978 (see now Subsection F) as requiring the retirement board to continue disability benefits to a member who is capable of engaging in gainful employment is wholly foreign to the statutory scheme governing disability benefits, would be a radical departure from former law, is inconsistent, and would amount to reading into the statute significant obligations against the association's funds that the legislature has not contemplated. 1990 Op. Att'y Gen. No. 90-09. Rule adopted by the retirement board, providing for suspension of disability benefits if a member is capable of resuming gainful employment, was consistent with the statutory scheme governing the grant and continuation of disability benefits and was a reasonable implementation of Subsection C of former 10-11-11 NMSA 1978 (see now Subsection F). 1990 Op. Att'y Gen. No. 90-09. Legislative intent, as to contributing service. — The five years of contributing service for each employee was placed in former 10-11-10 NMSA 1978 by the legislature, with the intent that it be a safeguard to protect the association and the board from retiring employees for nonduty disability when they enter the service of the state or any of its agencies, and who were already disabled and could work for the state or its agencies for a few weeks or months and then claim nonduty disability. 1956 Op. Att'y Gen. No. 56-6449. Retroactive award prohibited. — The Public Employees Retirement Association may not award disability benefits retroactive to the date on which the member's name last appeared on the payroll with pay. 1989 Op. Att'y Gen. No. 89-18. Am. Jur. 2d, A.L.R. and C.J.S. references. — Requiring submission to physical examination or test as violation of constitutional rights, 164 A.L.R. 967, 25 A.L.R.2d 1407. Firemen: causal connection between fireman's performance of official duties and his disability, for purpose of recovering disability benefits, 27 A.L.R.2d 974. Relationship between performance of official duties and subsequent disability or death, for purpose of pension or survivorship benefits of government employee other than fireman, policeman, or military personnel, 85 A.L.R.2d 1048. Determination whether firefighter's disability is service-connected for disability pension purposes, 7 A.L.R.4th 799. Determination whether peace officer's disability is service-connected for disability pension purposes, 12 A.L.R.4th 1158. 67 C.J.S. Officers and Public Employees § 248; 81A C.J.S. States §§ 46, 105, 112 to 119.