Ohio § 742.38

§ 742.38.

(A)(1) The board of trustees of the Ohio police and fire pension fund shall adopt rules

establishing minimum medical testing and diagnostic standards or procedures to be

incorporated into physical examinations administered to prospective members of the

fund.  The standards or procedures shall include diagnosis and evaluation of the existence

of any heart disease, cardiovascular disease, or respiratory disease.  The rules shall specify the form of the examination report and the information to

be included in it. The board shall notify all employers of the establishment of the minimum standards

or procedures and shall include with the notice a copy of the standards or procedures.  The board shall notify all employers of any changes made to the standards or procedures.  Once the standards or procedures take effect, employers shall cause each prospective

member of the fund to submit to a physical examination that incorporates the standards

or procedures. (2) Division (A)(2) of this section applies to an employee who becomes a member of the

fund on or after the date the minimum standards or procedures described in division

(A)(1) of this section take effect.  For each employee described in division (A)(2) of this section, the employer shall

forward to the board a copy of the report of a physical examination that incorporates

the standards or procedures described in division (A)(1) of this section.  If an employer fails to forward the report in the form required by the board on

or before the date that is sixty days after the employee becomes a member of the fund,

the board shall assess against the employer a penalty determined under section 742.353 of the Revised Code . (B) Application for a disability benefit may be made by a member of the fund or, if the

member is incapacitated as defined in rules adopted by the board, by a person acting

on the member's behalf.  Not later than fourteen days after receiving an application for a disability benefit

from a member or a person acting on behalf of a member, the board shall notify the

member's employer that an application has been filed.  The notice shall state the member's position or rank.  Not later than twenty-eight days after receiving the notice or filing an application

on behalf of a member, the employer shall forward to the board a statement certifying

the member's job description and any other information required by the board to process

the application. If the member applying for a disability benefit became a member of the fund prior

to the date the minimum standards or procedures described in division (A)(1) of this

section took effect, the board may request from the member's employer a copy of the

report of the member's physical examination taken on entry into the police or fire

department or, if the employer does not have a copy of the report, a written statement

certifying that the employer does not have a copy of the report.  If an employer fails to forward the report or statement in the form required by

the board on or before the date that is twenty-eight days after the date of the request,

the board shall assess against the employer a penalty determined under section 742.353 of the Revised Code . The board shall maintain the information submitted under this division and division

(A)(2) of this section in the member's file. (C) For purposes of determining under division (D) of this section whether a member of

the fund is disabled, the board shall adopt rules establishing objective criteria

under which the determination is to be made.  The rules shall include standards that provide for all of the following: (1) Evaluating a member's illness or injury on which an application for disability benefits

is based; (2) Defining the occupational duties of a police officer or firefighter; (3) Providing for the board to assign competent and disinterested physicians, advanced

practice registered nurses, physician assistants, and vocational evaluators to conduct

examinations of a member; (4) Requiring a written report for each disability application that includes a summary

of findings, medical opinions, including an opinion on whether the illness or injury

upon which the member's application for disability benefits is based was caused or

induced by the actual performance of the member's official duties, and any recommendations

or comments based on the medical opinions; (5) Taking into consideration the member's potential for retraining or reemployment. (D) The board may grant disability benefits to a member based solely on a review of an

application for disability benefits and supporting medical documentation or may require

the member to undergo a medical examination, a vocational evaluation, or both.  Any medical examination or vocational evaluation shall be conducted by a physician,

advanced practice registered nurse, physician assistant, or vocational evaluator assigned

in accordance with rules adopted under division (C)(3) of this section.  If a medical examination is conducted by an advanced practice registered nurse or

physician assistant, the board shall only accept an examination report if a physician

reviews, approves, and signs the report before the report is submitted to the board. As used in this division: “ Totally disabled ” means a member of the fund is unable to perform the duties of any gainful occupation

for which the member is reasonably fitted by training, experience, and accomplishments.  Absolute helplessness is not a prerequisite of being totally disabled. “ Permanently disabled ” means a condition of disability that is expected to last for a continuous period

of not less than twelve months after an application for disability benefits is filed

and from which there is no present indication of recovery. “Hazardous duty” has the same meaning as in 5 C.F.R. 550.902 , as amended. (1) A member of the fund who is permanently and totally disabled as the result of the

performance of the member's official duties as a member of a police or fire department

shall be paid annual disability benefits in accordance with division (A) of section 742.39 of the Revised Code .  In determining whether a member of the fund is permanently and totally disabled,

the board shall consider standards adopted under division (C) of this section applicable

to the determination. (2) A member of the fund who is permanently and partially disabled as the result of the

performance of the member's official duties as a member of a police or fire department

shall, if the disability prevents the member from performing those duties and impairs

the member's earning capacity, receive annual disability benefits in accordance with division (B) of section 742.39 of the Revised Code .  In determining whether a member of the fund is permanently and partially disabled,

the board shall consider standards adopted under division (C) of this section applicable

to the determination. (3)(a) A member of the fund who is permanently disabled as a result of heart disease or

any cardiovascular or respiratory disease of a chronic nature, which disease or any

evidence of which disease was not revealed by the physical examination passed by the

member on entry into the department or another examination specified in rules the

board adopts under section 742.10 of the Revised Code , is presumed to have incurred the disease while performing the member's official

duties, unless the contrary is shown by competent evidence.  The board may waive the requirement that the absence of disease be evidenced by

a physical examination if competent medical evidence of a type specified in rules

adopted under section 742.10 of the Revised Code is submitted documenting that the disease was not evident prior to or at the time

of entry into the department. (b) A member of the fund who is a member of a fire department, has been assigned to at

least six years of hazardous duty as a member of a fire department, and is disabled

as a result of cancer, is presumed to have incurred the cancer while performing the

member's official duties if the member was exposed to an agent classified by the international

agency for research on cancer or its successor agency as a group 1 or 2A carcinogen. (c) The presumption described in division (D)(3)(b) of this section is rebuttable in

any of the following situations: (i) There is evidence that the member incurred the type of cancer being alleged before

becoming a member of the department. (ii) There is evidence that the member's exposure, outside the scope of the member's official

duties, to cigarettes, tobacco products, or other conditions presenting an extremely

high risk for the development of the cancer alleged, was probably a significant factor

in the cause or progression of the cancer. (iii) There is evidence that shows, by a preponderance of competent scientific evidence,

that exposure to the type of carcinogen alleged did not or could not have caused the

cancer being alleged. (iv) There is evidence that the member was not exposed to an agent classified by the international

agency for research on cancer or its successor agency as a group 1 or 2A carcinogen. (v) The member is seventy years of age or older. (d) The presumption described in division (D)(3)(b) of this section does not apply if

it has been more than fifteen years since the member was last assigned to hazardous

duty as a member of a fire department. (4) A member of the fund who has five or more years of service credit and has incurred

a permanent disability not caused or induced by the actual performance of the member's

official duties as a member of the department, or by the member's own negligence,

shall if the disability prevents the member from performing those duties and impairs

the member's earning capacity, receive annual disability benefits in accordance with division (C) of section 742.39 of the Revised Code .  In determining whether a member of the fund is permanently disabled, the board shall

consider standards adopted under division (C) of this section applicable to the determination. (5) The board shall notify a member of its final action awarding a disability benefit

to the member within thirty days of the final action.  The notice shall be sent by certified mail, return receipt requested.  Not later than ninety days after receipt of notice from the board, the member shall

elect, on a form provided by the board, either to accept or waive the disability benefit

award.  If the member elects to waive the disability benefit award or fails to make an election

within the time period, the award is rescinded.  A member who later seeks a disability benefit award shall be required to make a

new application, which shall be dealt with in accordance with the procedures used

for original disability benefit applications. A person is not eligible to apply for or receive disability benefits under this division, section 742.39 of the Revised Code , or division (C)(2), (3), (4), or (5) of former section 742.37 of the Revised Code

unless the person is a member of the fund on the date on which the application for

disability benefits is submitted to the fund. With the exception of persons who may make application for increased benefits as provided

in division (D)(2) or (4) of this section or division (C)(3) or (5) of former section

742.37 of the Revised Code on or after July 24, 1986, or persons who may make application

for benefits as provided in section 742.26 of the Revised Code , no person receiving a pension or benefit under this section or division (C) of former

section 742.37 of the Revised Code may apply for any new, changed, or different benefit. (E) An advanced practice registered nurse or physician assistant assigned in accordance

with rules adopted under division (C)(3) of this section to conduct a medical examination

of a member who has applied for disability benefits shall only conduct an examination

that is within the scope and practice that is permitted under Chapter 4723. or 4730.

of the Revised Code, respectively, and does not exceed the advanced practice registered

nurse's or physician assistant's training. (F) Notwithstanding the requirement of section 742.41 of the Revised Code that all medical reports and recommendations required are privileged, the board shall

submit to the administrator of workers' compensation any data necessary for the report

required under section 4123.86 of the Revised Code .