§ 3.85.085. Disability committee administrative procedures

A.

The processing of applications for disability benefits shall be in accordance with the provisions of this section. These procedures shall also apply to application for death benefits in accordance with the provisions of this chapter.

1.

Filing a claim for disability or death benefits. A member or member's beneficiary who desires benefits from the retirement system shall file a written application for disability or death benefits with the disability committee within 365 days after the occurrence of the injury or the death or after the onset of the illness upon which the member's or beneficiary's entitlement to benefits as claimed.*

*Nothing in this section shall preclude the filing of a claim for occupational disability based upon knowledge of the job related nature of the disability which is first acquired more than 365 days after the injury or illness, provided that a claim for such occupational disability is filed within 365 days of the date knowledge of the job related nature of the claim is first acquired.

2.

Failure to file an application for disability or death benefits within the applicable filing period shall bar the application from further consideration, unless the disability committee excuses the delay in filing upon a demonstration by the member of extenuating circumstances which justify the delay. After the filing deadline, an applicant may file a written request for exemption from the deadline by documenting the extenuating circumstances which caused the delay in filing. The request for an extension must be supported by a physician's written statement that the member is undergoing medical treatment for the disabling condition and that there is a reasonable likelihood that the member will be able to return to his or her usual duties as a police officer or firefighter within the extended application period. The burden of proof supporting an extension shall be upon the member making application and shall be supported by such credible evidence including physicians' statements, as the member may provide. The disability committee will review each request for exemption to the filing deadline on a case-by-case basis. The disability committee's decision in any individual case shall not constitute precedent in any other case.

3.

The application for disability or death benefits shall be made on a form prescribed by the disability committee and shall include at a minimum the following information:

a.

The factual history leading up to the diagnosis of the member's condition and the application for disability or death benefits;

b.

The inclusive dates for which benefits are requested;

c.

Any medical or other documentation related to the application for benefits;

d.

Identification of the type of benefit sought and the reason supporting the application;

e.

An executed medical records release in a form prescribed by the disability committee and authorizing staff to obtain the member's medical records;

f.

One or more executed releases pertaining to records of which staff may seek copies in connection with its review of the application when such records are in the custody of a government agency, the member's former employer, or any other person.

4.

Every member or member's beneficiary shall have a full and fair opportunity to present an application for disability or death benefits to the disability committee.

5.

A member or member's beneficiary may withdraw an application for disability or death benefits only by filing a written notice with the disability committee. Withdrawal of an application for disability or death benefits shall preclude a future application for disability or death benefits arising from the same facts upon which the member's beneficiary relied as the basis for the withdrawn application.

B.

Claims procedure:

1.

The staff shall investigate each application for disability or death benefits and present its analysis and recommended disposition of the application to the disability committee at the next regularly scheduled meeting after completion of the investigation, except where delegated under section 3.85.080 E. Staff shall complete its investigation within 90 days after an application is received, unless the disability committee authorizes a longer period of time for investigation. During the course of its investigation, the staff shall promptly provide the applicant with copies of all pertinent documentation. Staff shall provide to the applicant written notice of the date, time and location of the disability committee meeting during which the staff intends to present its analysis, together with its recommendation, no later than ten working days prior to the meeting.

2.

Unless otherwise instructed by the disability committee, the staff shall review the continuing eligibility of every recipient of disability benefits on an annual basis or upon receipt of information which suggests the possibility of a change in eligibility. In conjunction with this review, the recipient shall provide staff with relevant requested information which is in the possession or control of the recipient. The recipient shall also sign any relevant information or records release authorization forms presented by the staff. Staff shall provide the recipient written notice of the date, time and location of the disability committee meeting during which staff intends to present its analysis of the issue of continuing eligibility for disability benefits, together with copies of its analysis and all non-privileged documents maintained by staff no later than ten working days prior to that disability committee meeting.

3.

If an applicant or a benefit recipient fails to provide medical records, other relevant records or assigned records or information release authorization forms recently requested by staff, or otherwise interferes with the staff's investigation of the disability application, the staff may request that the disability committee suspend consideration of the application or suspend payment of the disability or death benefits under investigation for the reasons set forth above and shall provide the applicant or recipient with notice of that request. The applicant or recipient shall have ten days after notice to file evidence with the disability committee to show that the applicant or recipient has not failed to produce the requested documents; that applicant or recipient has not interfered with the staff investigation; or that the applicant or recipient's actions are justified. If the disability committee finds, after providing the applicant or recipient with an opportunity to be heard, that the applicant or recipient unreasonably failed to give a requested information release authorization or to produce documents or otherwise unreasonably interfered with the staff investigation, the disability committee may, among other potentially available sanctions, suspend consideration of the application or suspend payment of the disability benefits under investigation until the records or information release authorization is given; the documents are produced; or the interference ceases.

4.

During its investigation and analysis of an application or continuing eligibility for benefits, the staff may consult with the retirement system's legal counsel in order to identify legal issues which may relate to the staff investigation and analysis or to receive other pertinent advice. The system's legal counsel, at this stage, is initially neutral and is not charged to function as an advocate for or against the benefit claim.

5.

Upon initial review of an application or of a continuing eligibility investigation, the disability committee may vote to decide the issue presented, or it may postpone the decision and consult with legal counsel or other experts or require additional information, including mental or physical examinations.

6.

If the disability committee decides to award benefits as requested by the applicant, the staff shall implement the disability committee's decision.

7.

If the disability committee decides not to grant the benefits requested or decides to terminate benefits being received, the applicant or the recipient may demand a formal hearing on the claim for benefits. This demand must be made in writing within 15 days of notification of the disability committee's initial decision. The disability committee shall set a formal hearing to occur within 90 days after the receipt of the demand for a formal hearing. The hearing may be scheduled for a later date only with the approval of the applicant or recipient, except that the disability committee may suspend or reschedule the hearing without the applicant's or recipient's approval if it finds that the applicant or recipient has failed or refused to cooperate or otherwise comply with the claims investigation requirements of the disability committee or with legitimate discovery obligations.

8.

In all cases in which an applicant or recipient requests a formal hearing, the disability committee will refer its decision to legal counsel for review and advice. The legal counsel shall provide a review and analysis at the next regularly scheduled meeting of the disability committee, or at such other time as the disability committee may direct. If appropriate, the disability committee may, upon notice to the applicant or recipient, reconsider its original decision prior to a formal hearing on the matter.

9.

The staff is authorized to receive, investigate and grant normal, early, and deferred vested retirement applications, and survivor benefits without active participation by the disability committee or the board of trustees.

C.

Preparation for formal hearing.

1.

The applicant or recipient may choose to be represented by an attorney or other representative at the formal hearing. The applicant or recipient shall file written notice of identity and profession of the chosen representative with the disability committee within 25 days of the disability committee's initial decision. The disability committee shall have the authority, after notice and an opportunity to be heard, to deny a representative permission to appear before the disability committee as the result of refusal to comply with its directions; continued use of dilatory tactics; refusal to adhere to reasonable standards of orderly and ethical conduct; failure to act in good faith; or violation of the prohibition against ex parte communication.

2.

The disability committee may decide to have its own attorney, the staff, or both, represent the interests of the retirement system at a formal hearing under this chapter. The disability committee shall give notice of its decision to the applicant or recipient and to any other party to the proceeding. If the applicant or recipient chooses to be represented by an attorney, the system shall be represented by the disability committee's legal counsel, unless the disability committee decides otherwise by an affirmative vote of at least three disability committee members. The role of the disability committee's attorney, or of the staff, will be to test the validity of an applicant's claim or of the recipient's continuing eligibility for benefits. In performing this role, the disability committee's attorney or staff may concede issues, should justice require; however, unless otherwise permitted by the disability committee, the disability committee's attorney or staff shall give the disability committee and the other parties written notice of the decision to concede an issue at least ten workings days prior to the date of the formal hearing.

3.

No later than ten working days before a formal hearing, all parties shall file with the disability committee a witness list, identifying each witness and containing the substance of the witnesses' testimony. Deposition transcripts may be used in lieu of live testimony. In the case of a video deposition, a text transcript must be used. The term testimony shall not be construed to apply to written medical reports. The parties shall also file with the disability committee copies of all documents to be submitted as exhibits at the hearing. Each disability committee member shall receive a full set of documents and witness summaries or depositions not less than seven working days prior to a formal hearing.

4.

The staff or the disability committee's attorney shall submit a memorandum outlining its position regarding the disposition of the claim for benefits. The applicant or recipient may file such a memorandum, but is not required to do so.

5.

All preliminary motions shall be filed in advance of the hearing and copied to all parties. The disability committee shall rule on all motions for continuance or to disqualify staff, disability committee members or any hearing officer retained by the disability committee. Should the disability committee retain a hearing officer, the hearing officer will decide all other pending motions. The disability committee may rule on motions covering application of the law to a particular application, after receiving recommendations from the hearing officer.

6.

The parties may engage in discovery in the form of depositions, interrogatories, requests for admissions and production of documents as described in Rules 30, 33, 34, and 36 of the Alaska Rules of Civil Procedure, except that responses shall be due within 15 days prior to the hearing. The parties may also agree to other forms of discovery. All aspects of discovery shall be completed not later than ten working days prior to the hearing date set by the disability committee.

7.

The disability committee may, on its own motion or at the request of a party, require an applicant for or recipient of disability benefits to submit to mental or physical examinations relevant to the claim at the expense of the retirement system. The results of such examinations shall be provided to the disability committee and to the parties. Upon request, the applicant or recipient shall be given an opportunity to demonstrate to the hearing officer or to the disability committee that any mental or physical examination should not be required. Any delay resulting from the exercise of this right may justify a continuance of the formal hearing.

8.

If a party fails or refuses to submit to required mental or physical examination or to comply with legitimate discovery requests, the disability committee may issue appropriate sanction rulings, including refusal to process the application further or to suspend benefits under investigation, until compliance with discovery obligations or submission to required mental or physical examination is demonstrated.

9.

For the purposes of this section, the term "party" shall include only the applicant (or representative) and the system (or representative).

D.

Hearing procedures. A formal hearing before the disability committee shall include the following procedures:

1.

The disability committee may retain a hearing officer to conduct a formal hearing in the manner determined by disability committee.

2.

Prior to the hearing the hearing officer shall consult with the parties to set the time, date and place of the hearing. The hearing officer may identify the issues to be addressed at the hearing, may set deadlines for discovery and other pre-hearing events, and may solicit or accept stipulations to promote the orderly and efficient resolution of disputed issues. The hearing officer may conduct pre-hearing conferences as necessary. The hearing officer may, in connection with pre-hearing proceedings, make decisions or recommendations to the disability committee on pre-hearing motions. In the event that any party disagrees with the decision or recommendation made by the hearing officer on a pre-hearing motion, that matter shall be taken up in its entirety with the disability committee at the hearing for final resolution. A decision of the hearing officer may be sustained only upon an affirmative vote of at least three members of the disability committee.

3.

During hearings, the hearing officer shall be responsible for administering the hearing and regulating the conduct of the parties in a judicious, fair and impartial manner. The hearing officer shall make all evidentiary and procedural rulings to be followed by the disability committee and shall provide for the orderly presentation of evidence and argument by all parties. The hearing officer shall have authority to leave the record open for the inclusion of specific items as determined by the disability committee.

4.

During deliberations, the hearing officer shall assist the disability committee, upon request, concerning legal or factual matters presented to the disability committee. The hearing officer may offer legal advice regarding proper legal standards, weight of evidence, the relationship between evidence and opinion, and other legal or factual matters as may arise during the disability committee's deliberations. The hearing officer shall not offer his or her own opinion or conclusion regarding the ultimate issues to be decided by the disability committee. The hearing officer may, in consultation with the disability committee, prepare recommended findings of fact and conclusions of law setting forth the disability committee's decision. Such recommended order shall be distributed to all disability committee members prior to issuance. Each disability committee member shall be given the opportunity to amend the recommended findings of fact and conclusions of law in order to ensure that his or her views are accurately expressed.

5.

The parties may appear in person or through counsel or other representatives. Parties may present witnesses and evidence on their behalf. All witnesses shall be subject to cross-examination on matters relevant to the issues, to impeach adverse witnesses and to offer rebuttal evidence. Relevant evidence shall be admitted if it is the sort of evidence upon which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of a common law or statutory rule which makes improper the admission of the evidence over objection in a civil action. Hearsay evidence may be considered provided there are guarantees of its trustworthiness and that it is more likely to prove the point for which it is offered than any other evidence which the proponent can procure by reasonable efforts. Written medical records shall always be admitted as evidence so long as they are authenticated in a manner acceptable to the disability committee.

6.

All hearings before the disability committee shall be open to the public unless all parties to such hearings and the disability committee agree that the subject matter tends to prejudice the reputation and character of any person. All applications for award of disability benefits premised on a psychological impairment and documents relating to those applications shall be confidential. Applications for disability benefits, premised on psychological impairments shall be heard, as provided for in this chapter, in executive session. The disability committee may not, however, take any action in executive session pertaining to the merits of any application for disability benefits premised on a psychological impairment.

7.

All parties shall have the right to subpoena witnesses and documents in the manner prescribed in Anchorage Municipal Code 3.60.045(F). Timely service of subpoenas is the sole responsibility of the party for whom it is issued.

8.

All administrative hearings before the disability committee shall be memorialized by an electronic or stenographic record.

9.

A board member, hearing officer or party before the disability committee may request disqualification of any disability committee member or hearing officer as provided in this subsection. Any person seeking disqualification of a disability committee member or board hearing officer shall file with the staff one or more affidavits, based on personal knowledge, stating any reason for disqualification of the hearing officer or disability committee member, at least five days before commencement of the hearing at which the disability committee member or hearing officer is scheduled to participate. The person seeking disqualification shall state with particularity the grounds supporting a claim that the disability committee member or hearing officer cannot fairly and impartially participate in the matter. Upon receipt of a timely request for disqualification of a disability committee shall determine the question. In the case of a motion to disqualify a disability committee member, only disability committee members who are not the subject of the motion to disqualify may participate in the voter deliberations on the question of disqualification. Disability committee members and hearing officers may voluntarily disqualify themselves whenever their impartiality might reasonably be questioned or whenever circumstances may reasonably present the appearance of an absence of impartiality. The fifth member shall vote on questions of disqualification. The board of trustees shall appoint a replacement disability committee member from among the other members of the board of trustees from the same representative group as the disqualified member.

E.

Decisions.

1.

The disability committee is limited in the consideration of any claim to matters which have been made part of the record. An applicant for benefits must prove each element of his or her claim by a preponderance of the evidence. No benefits may be finally terminated unless termination is supported by a preponderance of the evidence, except that benefits may be suspended for non-compliance consistent with the provisions of this chapter. Whenever benefits are thus suspended, they shall be forfeited, unless forfeiture is waived by an affirmative vote of not less than three members of the disability committee.

2.

No later than 30 days after a formal hearing, the disability committee shall issue a written decision based on findings and conclusions expressed by the members of the disability committee serving on the hearing panel. Such findings must be in writing and must be reasonably specific so as to provide interested persons and, where appropriate, reviewing authority a clear and precise understanding of the reasons for the decision entered. The decision, findings of fact and conclusions of law shall be forwarded to all parties to the proceeding. The decision shall be deemed final on the date it is served either in person or by mail on all parties.

F.

Reconsideration.

1.

A decision of the disability committee may be reconsidered or reheard only if:

a.

There is a substantial procedural error in the original proceeding;

b.

The disability committee acted without jurisdiction in the original proceeding;

c.

The original decision was based on fraud or misrepresentation.

2.

Any person seeking reconsideration or rehearing must file a request with the staff together with the materials supporting one or more of the grounds set forth in this section within 15 days upon notice of the decision for which the reconsideration or rehearing is requested. A rehearing shall be conducted in the same manner as the original proceeding, unless the parties agree to a different period of time in which to conduct further discovery.

3.

The filing of a timely notice for reconsideration or rehearing shall delay the date upon which an order becomes final. In the case of a decision which is subject to a timely motion for rehearing or reconsideration, the disability committee's initial order shall become final on the date the order on reconsideration is served by mail or in person.

G.

Appeal. A member whose claim is denied on appeal to the disability committee may seek judicial review in the superior court in a manner consistent with law. In any such appeal, the disability committee's decision shall be defended by the board's counsel.

H.

Reimbursement of legal fees and costs. A member or survivor of a member whose application for benefits is formally denied by the disability committee upon "administrative" or claim review under this chapter shall be entitled to receive an award of actual reasonable attorney's fees and costs if, on formal hearing, the disability committee grants benefits. If the disability committee's denial of benefits is appealed to the superior court and benefits are awarded by the court, attorney fees and costs specified above shall be paid by the retirement system. If the appeal to the superior court results in remand to the disability committee, no fees are payable unless the disability committee, upon reconsideration, grants the claimed benefits. Attorney fees and costs reimbursed under this section are limited to those fees and costs incurred after the meeting during which the application is first denied by the disability committee. Reimbursement of attorney fees and costs under this section shall be made by the retirement system in addition to any benefits that are paid to the successful applicant.

(AO No. 2000-65, § 3, 4-18-00; AO No. 2002-54, § 8, 3-19-02)