24-4-511. Eligibility for benefits — Disability retirement — Definitions.

24-4-511. Eligibility for benefits — Disability retirement — Definitions. (a)(1)(A)(i) Except for members of the General Assembly who need at least ten (10) years of actual service, any active member with five (5) or more years of actual service, including actual service for at least eighteen (18) of the twenty-four (24) calendar months immediately preceding his or her disability, who becomes totally and permanently physically or mentally incapacitated for any suitable job or position as an employee as a result of a personal injury or disease may be retired by the Board of Trustees of the Arkansas Public Employees' Retirement System upon written application filed with the board by or on behalf of the member. (ii)(a) As used in subdivision (a)(1)(A)(i) of this section, “disease” includes without limitation cancer that a firefighter or volunteer firefighter is diagnosed with while he or she is in the line of duty. (b) A finding that a firefighter or volunteer firefighter was diagnosed with cancer while he or she was in the line of duty may be rebutted by a preponderance of the evidence. (iii) As used in subdivision (a)(1)(A)(ii) of this section, “cancer” means: (a) Leukemia, lymphoma, mesothelioma, or multiple myeloma; (b) Cancer of the brain, urinary tract, liver, skin, breast, cervix, thyroid, prostate, testicle, colon, or digestive tract; or (c) A cancer that has been found by research and statistics to show higher instances of occurrence in firefighters than in the general population, if the firefighter was exposed to a known carcinogen, as determined by the Department of Health with consideration to the findings of the International Agency for Research on Cancer, while in the official line of duty. (B) This may occur only if after a medical examination of the member made by or under the direction of a physician or physicians designated by the board, the physician reports to the board in writing that the member is physically or mentally totally incapacitated for any suitable job or position, that the incapacity will probably be permanent, and that the member should be retired. (2) Upon filing the proper application and meeting the requirements stated in this section, the disability annuity shall be effective the first day of the calendar month following the Arkansas Public Employees' Retirement System's approval of the disability application. (b)(1) Upon disability retirement as provided in subsection (a) of this section, a member shall receive an annuity provided for in § 24-4-601, and his or her disability retirement and annuity shall be subject to the provisions of subsections (c) and (d) of this section. (2) When a person retired on disability under this chapter reaches the age required for full age and service retirement benefits, the person's retirement status shall be changed from that of disability to superannuation. (3)(A)(i) A person who receives or who is receiving a benefit solely because of disability but who meets or has met the elected credited service and total credited service requirement but not the age requirement for a benefit provided for a member with elected service, upon attaining the required age, may have his or her disability retirement status changed to superannuation. (ii) The person's benefit shall be the age and service amount provided by his or her credited service in effect before termination of employment because of disability. (B) The change must be made by formal request of the retirant to the board on a form to be furnished by the Arkansas Public Employees' Retirement System and filed with the system setting forth at what time, not less than thirty (30) days nor more than ninety (90) days subsequent to the execution and filing thereof, he or she desires the change to be effective. (C) In no event shall the change be effective earlier than the first of the month following attainment of the age required for the age and service benefit provided by his or her amount of credited service, and, after the effective date, he or she shall be eligible to return to employment subject to the provisions of § 24-4-520. (c)(1) At least one (1) time each year during the first five (5) years following a member's retirement on account of disability and at least one (1) time in each three-year period thereafter, the board may require any disability retirant who has not attained the normal retirement age for full age and service retirement benefits to undergo a medical examination to be made by or under the direction of a physician or physicians designated by the board. (2) If a retirant refuses to submit to a medical examination in any period, his or her disability annuity may be suspended by the board until his or her withdrawal of the refusal. (3) If the refusal continues for one (1) year, all of the retirant's rights in and to a disability annuity may be revoked by the board. (4) If, upon the medical examination of the retirant, the physician reports to the board that the retirant is physically and mentally able and capable for a suitable job or position as an employee, his or her disability retirement shall terminate. (5) If a disability retirant secures employment with an employer not considered a public employer, as defined in § 24-4-101, for the purpose of determining whether he or she is capable of returning to employment, then the disability retirant shall be allowed to earn compensation from the employment for a period of time not to exceed nine (9) months, during which period of time the retirant shall receive no monthly benefits from the system. (6) If the retirant becomes unable to continue his or her employment before the nine-month period expires, then the retirant's disability retirement benefits from the system shall be reinstated and shall be effective the first day of the month after terminating his or her employment. (7) Only one (1) trial work period is allowed any disability retirant, but the nine (9) months need not be consecutive. (8) The trial work period does not prevent the consideration of any medical evidence which may demonstrate recovery before the ninth month of trial work. (d)(1) If at the end of the nine-month trial work period the retirant wishes to continue his or her employment outside the system, then the retirant's disability retirement status shall terminate. For the purpose of determining his or her eligibility for any other benefit, the retirant shall be considered to have terminated active membership as of the time of disability retirement but for a reason other than disability or death. (2) If the former disability retirant again becomes an employee of a public employer, as defined in § 24-4-101, the retirant shall immediately again become a member of the system, his or her credited service at the time of his or her disability retirement shall be restored to the retirant's credit, and the amount of his or her accumulated contributions at the time of his or her disability retirement shall be restored to his or her credit in the members' deposit account. (3) In no event shall the retirant be given service credit for the period he or she was in receipt of the disability annuity. (4) Should the former disability retirant again become totally and permanently disabled within twenty-four (24) months immediately following his or her return to membership or should the retirant qualify for benefits by reason of age and service, the eighteen (18) months' credited service requirement specified in this section shall be waived. (e)(1) As used in this section, “suitable job or position” means a job or position, the requirements of which can be physically or mentally performed, as determined by a physician, and for which the remuneration would be substantially gainful. (2) In case of doubt as to what would be substantially gainful, the board shall have the final power to decide the question. (3) Any former member who is or was approved for disability by the Social Security Administration but whose onset date does not meet the provision of subdivision (a)(1)(A) of this section that requires credited service for eighteen (18) of the twenty-four (24) months immediately preceding the disability, may be retired by the board upon written application to the board subject to the following: (A) The onset date determined by the Social Security Administration is within twenty-four (24) months of the date of termination from covered employment; (B) The former member furnishes a written statement to the board from a physician approved by the board that the former member was suffering at the time of termination from an illness or injury that subsequently led to the disability determination; and (C) Retirement payments authorized under this section shall be effective on the first day of the next month following approval by the board of the written application and shall not be retroactive.