RETIREMENT FOR DISABILITY

SJ-MC tit. 3, div. II, ch. 3.28, pt. 10

in effect

San José Municipal Code § 3.28.1200 Eligibility.

3.28.1200 - Eligibility. No person shall be retired for disability under or pursuant to the provisions of this Chapter 3.28 unless he is eligible therefor under and pursuant to the provisions of this Part 10. (Prior code § 2904.1450.)

San José Municipal Code § 3.28.1210 Definitions.

3.28.1210 - Definitions. As used in this Part 10: A. "Disability," "incapacity for the performance of duty" and "incapacitated for the performance of duty," when used as a basis for retirement under this System, mean disability of a member, short of death, of permanent or extended and uncertain duration, occurring while such member is an employee of the City in the Federated City Service of the City, as a result of injury or disease (except that in case of a mental derangement the cause thereof, for purposes of this Section only, shall be disregarded), which renders the member physically or mentally incapable of continuing to satisfactorily assume the responsibilities and perform the duties and functions of the position then held by him or her and of any other position in the same classification of positions to which the City may offer to transfer him or her, as determined by the independent medical panel, or upon appeal, by the administrative law judge, on the basis of competent medical opinion. It does not mean mere physical or mental inability to assume said responsibilities or perform said duties. B. "Nonservice-connected disability" means a disability, as above defined, of a member, which is not a service-connected disability. C. "Service-connected disability" means a disability, as above defined, of a member which arises and results from an injury or disease arising out of and in the course of the Federated City Service, rendered by the member, for which he or she is entitled to credit under the provisions of this System. (Prior code §§ 2904.1451 - 2904.1453; Ord. 29904.)

San José Municipal Code § 3.28.1220 Disability retirement - On motion of retirement board.

3.28.1220 - Disability retirement - On motion of retirement board. A member who is found to be eligible to retire for disability by the independent medical panel or administrative law judge may be retired for disability, pursuant to and subject to the provisions of this Chapter 3.28, on the Retirement Board's own motion with or without a request or application therefor being made by the member or any other person. (Prior code § 2904.1454; Ord. 29904.)

San José Municipal Code § 3.28.1230 Disability retirement - On application - Persons authorized.

3.28.1230 - Disability retirement - On application - Persons authorized. A member who is eligible to retire for disability shall be retired for disability, pursuant to and subject to the provisions of this Part 10, by the independent medical panel, or, upon appeal, the administrative law judge, upon application being made therefor by any of the following persons: A. The City Manager; B. The head of the office or department in which the member is or was last employed; or C. The member, or any authorized person on his or her behalf. (Prior code § 2904.1455; Ord. 29904.)

San José Municipal Code § 3.28.1240 Time limitation applicable to board's motion and application.

3.28.1240 - Time limitation applicable to board's motion and application. Anything elsewhere to the contrary notwithstanding, the independent medical panel shall not make a disability determination unless it does so while the member is still in Federated City Service, or within one (1) month after the member's discontinuance of such service, or during the continuance of the member's disability if it continues after he or she ceases to render Federated City Service. Each applicant must submit medical documents indicating the initial nature of their disability including the affected body part, if applicable, the current level of disability, and current treatments underway. Such medical documents must be submitted to the independent medical panel within one (1) year of separation unless the independent medical panel grants an extension of the deadline as a result of extenuating circumstances. However, applications for disability may not be deferred by the applicant for more than four (4) years from the date the application was submitted unless the independent medical panel finds the existence of extenuating circumstances and grants an extension upon that basis. (Prior code § 2904.1456; Ord. 29904.)

San José Municipal Code § 3.28.1250 Medical examinations.

3.28.1250 - Medical examinations. A. The independent medical panel on its own motion at any time may, or upon a request from the Retirement Board, and upon receipt of an application for disability retirement shall refer the disability claim to the independent medical panel to determine whether such member is disabled or incapacitated for the performance of duty, and to determine whether such disability or incapacity for performance of duty is a service-connected or nonservice-connected disability in those situations where the member's eligibility for disability retirement, or the amount of disability retirement allowance to which the member may be entitled, is dependent upon such determination. Prior to the independent medical panel making a disability determination, the Board shall determine whether the member meets any other requirements for disability retirement eligibility under this Part 10. Once the independent medical panel (or upon appeal, the administrative law judge) makes a disability determination, the Board shall determine the amount of such disability retirement in accordance with this Part 10. B. In addition, the member may submit a medical report from the member's own physician or surgeon. Where application for disability retirement is made by the member or on the member's behalf, a medical report by said member's private physician or surgeon may be submitted with the application. The independent medical panel may require additional medical examinations or procure or require additional or other evidence before determining a member's disability. C. Where application for disability retirement is made by a member and one (1) or more panel proceedings are held for the purpose of determining questions involving any right, benefit or obligation of a person under this Part 10, both the applicant and the City may have legal counsel present at any hearings. In addition, any decision made by the independent medical panel to approve or deny an application for disability retirement may be appealed to an administrative law judge pursuant to the provisions governing hearings by the State of California Office of Administrative Hearings, General Jurisdictional Division, by the City or member. The request for appeal must be made in writing within forty-five (45) days of the independent medical panel's decision. The hearing before the administrative law judge must be scheduled within ninety (90) days of the notice of appeal unless a later date is agreed upon by the City and the member and approved by the administrative law judge. The administrative law judge's decision, or the independent medical panel's decision in the absence of an administrative law judge's decision, will be a binding determination within the meaning of California Code of Civil Procedure Section 1094.5 and shall be based on the information and documentation presented to the independent medical panel. D. All medical information under the control of the City and the member, including reports in connection with Workers Compensation claims or proceedings to the extent permitted by law, shall be made available to the City's Medical Director, the Retirement Board and the independent medical panel upon their request. (Prior code § 2904.1457; Ords. 19283, 26846, 29904.)

San José Municipal Code § 3.28.1260 Disability retirement - Conditions for granting.

3.28.1260 - Disability retirement - Conditions for granting. If the medical reports and other available evidence and information presented show to the satisfaction of the independent medical panel or, upon appeal, the administrative law judge, that the member is incapacitated for the performance of his or her duty, and if such member is otherwise eligible to retire for disability pursuant to the provisions of this Part 10, the Board shall retire him or her for disability as soon as practicable after the appeal period expires or been waived by the relevant party. (Prior code § 2904.1458; Ord. 29904.)

San José Municipal Code § 3.28.1270 Determination as to whether disability is service-connected.

3.28.1270 - Determination as to whether disability is service-connected. If the medical examination and other available evidence and information presented show to the satisfaction of the independent medical panel, or, upon appeal, the administrative law judge, that the disability is service-connected, it shall so find and declare such determination to the Retirement Board. If the medical examination and other available information presented show to the satisfaction of the independent medical panel, or, upon appeal, the administrative law judge, that the disability is nonservice-connected, it shall so find and declare such determination to the Retirement Board. Based on such finding and declaration, the independent medical panel or administrative law judge shall instruct the Board whether to retire the member for service-connected or nonservice-connected disability. (Prior code § 2904.1459; Ord. 29904.)

San José Municipal Code § 3.28.1280 Service-connected disability retirement - Amount of allowance.

3.28.1280 - Service-connected disability retirement - Amount of allowance. A. Subject to other provisions of this Chapter 3.28, a member who, while he or she is an employee of the City in the Federated City Service is disabled and incapacitated for the performance of duty, may be retired by the Retirement Board pursuant to the provisions of this Section for such disability, and shall be so retired upon application being made therefor, if said disability is a service-connected disability. B. Subject to other provisions of this Chapter, any member (other than Tier 2 members) retired pursuant to the provisions of this Section because of a service-connected disability shall thereafter be paid from the retirement fund, while he or she is disabled and incapacitated for the performance of duty as a result of such service-connected disability, a service-connected disability retirement allowance in an annual allowance equal to forty percent (40%) of the member's final compensation, plus two and one-half percent (2.5%) of the member's final compensation for each year of Federated City Service for which the member is entitled to credit under the provisions of this System in excess of the first sixteen (16) years of service; provided however, that in no event shall said allowance be more than seventy-five percent (75%) of the member's final compensation, less the amounts specified in Sections 3.28.1330 and 3.28.1340 of this Chapter. C. Tier 2 members who are approved by the independent medical panel or, upon appeal, the administrative law judge, for a service-connected disability an allowance equal to two percent (2%) of the Tier 2 member's final compensation for each year of service; provided, however, the Tier 2 member's allowance may not be less than forty percent (40%) of final compensation nor greater than seventy percent (70%) of the member's final compensation. Notwithstanding the foregoing, the Tier 2 member's service-connected disability allowance shall be subject to the reductions specified in Sections 3.28.1330 and 3.28.1340. (Prior code § 2904.1460; Ords. 26846, 29120, 29904.)

San José Municipal Code § 3.28.1290 Nonservice-connected disability retirement - Eligibility.

3.28.1290 - Nonservice-connected disability retirement - Eligibility. Subject to other provisions of this Chapter 3.28, a member who, while an employee of the city in the federated city service, is disabled and incapacitated for the performance of duty may be retired by the retirement board pursuant to the provisions of this section for such disability and shall be so retired, upon application being made therefor, if such disability is a nonservice-connected disability and if, in addition, such member satisfies and meets all of the eligibility requirements set forth in any one of the following subsections: A. The member is entitled to credit for five or more years of federated city service rendered after he or she became a member and while he or she was a member of this system; or B. The member is a former member of the Chapter 3.24 retirement system who became a member of this system pursuant to the provisions of Section 3.28.400 and such member's accumulated contributions in the retirement fund are five hundred dollars or more; or C. The member is a former member of the Chapter 3.24 retirement system who became a member of this system pursuant to the provisions of Section 3.28.410, 3.28.420 or 3.28.430, and such member's accumulated contributions in the retirement fund are five hundred dollars or more. (Prior code § 2904.1461; Ords. 21371, 23485.)

San José Municipal Code § 3.28.1300 Nonservice-connected disability retirement - Allowance when member is eligible therefor under subsection A or B of Section 3.28.1290.

3.28.1300 - Nonservice-connected disability retirement - Allowance when member is eligible therefor under subsection A or B of Section 3.28.1290. A. Subject to other provisions of this Chapter 3.28, a member who satisfies the eligibility requirements of subsection A. or B. of Section 3.28.1290 and is retired because of a nonservice-connected disability shall thereafter be paid from the retirement fund, while the person is disabled and incapacitated for the performance of duty as a result of such nonservice-connected disability, an annual nonservice-connected disability retirement allowance calculated in accordance with this Section 3.28.1300. B. If the person became a member of this System prior to September 1, 1998, the nonservice-connected disability retirement allowance shall be the amount of the member's allowance if the member were retired for a service-connected disability pursuant to the provisions of Section 3.28.1280, less: 1. The deductions specified in Sections 3.28.1330 and 3.28.1340; and 2. In the case of a member who is under fifty-five (55) years of age on the effective date of retirement, a sum equal to one-half percent (0.5%) times the number of years and/or fraction of years between the member's age on the effective date of retirement and fifty-five (55) years, times the member's final compensation. C. If the person became a member of this System on or after September 1, 1998, other than a Tier 2 member, the nonservice-connected disability retirement allowance shall, subject to a maximum of seventy-five percent (75%) of the member's final compensation, be: 1. Twenty percent (20%) of the member's final compensation; plus 2. Two percent (2%) of the member's final compensation for each year of service credit in excess of six (6) years but less than sixteen (16) years; plus 3. Two and one-half percent (2.5%) of the member's final compensation for each year of service credit in excess of sixteen (16) years; less 4. The deductions specified in Sections 3.28.1330 and 3.28.1340. D. If the person is a Tier 2 member, the non-service-connected disability retirement allowance shall be: two percent (2%) of the Tier 2 member's final compensation for each year of service but may not be less than twenty percent (20%) of the member's final compensation nor greater than seventy percent (70%) of the member's final compensation. Notwithstanding the foregoing, the Tier 2 member's nonservice-connected disability allowance shall be subject to the reductions specified in Sections 3.28.1330 and 3.28.1340. (Prior code § 2904.1462; Ords. 25612, 29120, 29904.)

San José Municipal Code § 3.28.1310 Nonservice-connected disability retirement - Allowance when member is eligible therefor under subsection C of Section 3.28.1290.

3.28.1310 - Nonservice-connected disability retirement - Allowance when member is eligible therefor under subsection C of Section 3.28.1290. Subject to other provisions of this Chapter 3.28, a member who is retired pursuant to the provisions of Section 3.28.1290 because of a nonservice-connected disability shall thereafter be paid from the retirement fund, while he is disabled and incapacitated for the performance of duty as a result of such nonservice-connected disability, as a nonservice-connected disability allowance, if and only if he does not satisfy the eligibility requirement set forth in Subsections A. or B. of Section 3.28.1290 but does satisfy all of the eligibility requirements set forth in Subsection C. of said Section 3.28.1290, an annual allowance equal to the amount hereinafter specified in Subsection A. of this section, less the amount specified in Subsection B. of this section, plus the amount specified in Subsection C. of this section, less the deductions specified in Subsection D. of this section, as follows: A. An amount equal to two and one-half percent (two percent for any period of reinstatement as a tier 2 member) of his final compensation times the number of years of federated city service to which he is entitled to credit under this system which were rendered by him after he became and while he was a member of this system; B. Less, if such member is under fifty-five years of age on the effective date of his retirement, a sum equal to one-half percent times the number of years and/or fraction of years between his age on the effective date of his retirement and fifty-five years, times his final compensation; C. Plus an amount equal to what would be his disability retirement allowance, as of June 30, 1975, under the provisions of the Chapter 3.24 retirement system as it existed on said date (excepting the provisions of Subsection B. of Section 3.24.1840 which provide for a minimum allowance, it being the intent of this subsection that the provisions of said Subsection B. of Section 3.24.1840 be disregarded in computing the amount payable under this paragraph) if he were then eligible to retire thereunder for disability and did then retire thereunder for disability, with credit only for those years of federated city service to which he was entitled to credit under the Chapter 3.24 retirement system on June 30, 1975 (plus the years of federated city service which he had theretofore lost because of his withdrawal of accumulated contributions but which he reacquired by redepositing such contributions pursuant to the provisions of Section 3.28.780), and with accumulated contributions in the retirement system equal to those then credited to him in said system plus formerly withdrawn amounts redeposited by him pursuant to the provisions of Section 3.28.780; D. Less the deductions specified in Sections 3.28.1320 and 3.28.1330. (Prior code § 2904.1463; Ord. 29120.)

San José Municipal Code § 3.28.1320 Election by former member of Chapter 3.24 system to receive disability retirement allowance provided by Chapter 3.24 system in lieu of certain Chapter 3.28 benefits.

3.28.1320 - Election by former member of Chapter 3.24 system to receive disability retirement allowance provided by Chapter 3.24 system in lieu of certain Chapter 3.28 benefits. A. A member of this System who is eligible to retire for disability under the preceding sections of this Part 10 may elect, if he or she was a former member of the Chapter 3.24 Retirement System and became a member of this System pursuant to the provisions of Sections 3.28.400, 3.28.410, 3.28.420 or 3.28.430 of this Chapter to receive, while he or she is disabled and incapacitated for the performance of duty as a result of such disability, in lieu of any and all benefits to which he or she or his or her survivors or estate might otherwise be or become entitled to because of his or her retirement for disability or because of his or her death after retirement while on such disability retirement, such disability retirement allowance as he or she would be entitled to if he or she were still a member of the Chapter 3.24 System, as it existed on June 30, 1975, and retired thereunder for disability at the same age as that at which he or she is retiring pursuant to the provisions of this Part 10, with credit for the number of years of Federated City Service for which he or she is entitled to credit under this System and with accumulated contributions equal to those credited to him or her in this System. A person making such election shall also be entitled to any right which he or she would have had, if he or she had retired under the Chapter 3.24 System, under the optional settlements provisions of the Chapter 3.24 System; and, if he or she exercises any rights under such optional settlements provisions, his or her named beneficiary shall receive, on his or her death while on such retirement, such benefits, if any, as such beneficiary should become entitled to under such optional settlements provisions because of his or her exercise of such rights. B. Upon exercising such election, said person loses all right to any and all other benefits which he or she might have or be or become entitled to under other sections of this Chapter 3.28 because of his or her retirement, and none of his or her survivors nor his or her estate shall have any right to any benefits under other sections of this Chapter 3.28 because of his or her death occurring while on such retirement; provided and excepting, however, that the special death benefit provided by Section 3.28.1620 shall still be payable, on his or her death while on retirement, to his or her estate or named beneficiary. (Prior code § 2904.1464; Ords. 29120, 29904.)

San José Municipal Code § 3.28.1325 Reports of earnings from outside occupation.

3.28.1325 - Reports of earnings from outside occupation. A. As a condition of a disability retirement allowance from the retirement fund, a person who has been retired for disability and has not reached age fifty-five (55) (sixty-two (62) in the case of a Tier 2 member recipient) shall file written statements with the Board which conform to the requirements of subsection B. below. B. A recipient described in subsection A. shall file statements as described either in subsection 1. or in subsection 2.: 1. Monthly and annual statements. a. Within ten (10) days after the end of each calendar month, the recipient shall file a monthly statement of the total income and earnings received by the recipient during the reporting month from any gainful occupation, other than service as an officer or employee of the City, and the sources of such income and earnings; and b. On or before May 1 of each year, the recipient shall file a notarized declaration under penalty of perjury, in a form approved by the Board, of the total income and earnings received by the recipient during the preceding calendar year, or any portion thereof, from any gainful occupation outside City service and the sources of such income and earnings. 2. Income tax returns. a. Instead of the statements described in subsection 1., the recipient may file copies of the recipient's federal and state income tax returns and the recipient's W-2 and/or 1099 forms showing the total income and earnings received by the recipient from any gainful occupation, other than service as an officer or employee of the City, and the sources of such income and earnings. Such tax returns and forms shall be filed on or before the first day of May following the tax reporting period. b. If a recipient elects to file tax returns, the recipient shall provide written notice of such election to the Board not later than the date the next monthly statement would otherwise be due. c. If a recipient elects to file tax returns, the recipient shall file with the Board a written statement of the recipient's projected reportable income and earnings for each calendar year, and the sources of such income and earnings. Such statement shall be filed on or before the tenth (10th) day of January in the applicable calendar year. The recipient may file an amended statement in any case where there is a change in the projected income and earnings. C. For the purposes of this Section, income and earnings shall not include interest, dividends or rent. D. If a recipient described in subsection A. fails to furnish the information required by this Section, the disability retirement allowance shall be discontinued until such time as the required information is furnished. When the required information is furnished, the disability retirement allowance shall be reinstated and allowances withheld pending receipt of the required information shall be paid, less any applicable deductions. (Ords. 24916, 29120, 29904.)

San José Municipal Code § 3.28.1330 Deductions - Recipient's earnings from outside occupation.

3.28.1330 - Deductions - Recipient's earnings from outside occupation. A. In any case where the recipient of a disability retirement allowance meets the following conditions, the recipient's disability retirement allowance shall be reduced as provided in subsection B. below: 1. The recipient has not reached age fifty-five (55) (sixty-two (62) in the case of a Tier 2 member recipient); and 2. The recipient is still incapacitated for the performance of duty; and 3. The recipient is engaged in a gainful occupation other than service as an officer or employee of the City. B. During the period the recipient is engaged in gainful employment, the recipient's disability retirement allowance shall be reduced to the amount which, when added to the recipient's income or earnings from such gainful occupation and when also added to all other applicable deductions, if any, required by other provisions of this Chapter 3.28, shall not exceed the amount of the maximum compensation earnable in such period by a person holding the position which the recipient held at the time of retirement, or, if that position has been abolished, the maximum compensation earnable by a person holding it immediately prior to its abolition. In no event, however, shall the disability retirement allowance payable for any period exceed the amount of disability retirement allowance to which the recipient would have been entitled for such period in the absence of this Section. C. For the purposes of this Section, income and earnings shall not include interest, dividends or rent. D. Any overpayment of disability retirement allowance made to a recipient may be deducted from future allowances payable to the recipient or any beneficiary of the recipient or shall otherwise be collected from the recipient. E. The following conditions shall apply in any case where, pursuant to Section 3.28.1325, the recipient has elected to file tax returns in lieu of monthly statements of income and earnings: 1. Reductions in disability retirement allowances shall be made based upon the statement of projected reportable income and earnings filed by the recipient. 2. Any overpayment of disability retirement allowance made during the applicable tax reporting period may be deducted from future allowances in substantially equal monthly deductions over a period not to exceed twelve (12) months. If the deductions are made as provided in this subsection E., the deductions shall include interest on the outstanding overpayment at the actuarial rate adopted by the Board. 3. Any underpayment of disability retirement allowance made during the applicable tax reporting period shall be paid to the disability retirement allowance recipient in one (1) lump sum within thirty (30) days of the verification of the underpayment by the Secretary to the Board. F. When the recipient of a disability retirement allowance reaches age fifty-five (55), (sixty-two (62) for Tier 2 member recipients), the deductions described in this Section shall cease except to the extent necessary to recover any overpayment. (Prior code § 2904.1465; Ords. 20147, 24916, 29120, 29904.)

San José Municipal Code § 3.28.1340 Deductions - Recipient's earnings from nonfederated city service.

3.28.1340 - Deductions - Recipient's earnings from nonfederated city service. A. Subject to the civil service rules, regulations and requirements of the City, the recipient of a disability retirement allowance may be reemployed by the City, in the City's discretion, in a position other than a position included in the Federated City Service, if he or she is not incapacitated for the performance of duty in such new position, notwithstanding the fact that he or she is still incapacitated for the performance of duty in the position held by him or her at the time of his or her retirement and in any other position in the same classification of positions as the one held by him or her at the time of his or her retirement. B. If, prior to attaining the age of fifty-five (55) years (sixty-two (62) years for Tier 2 member recipients), such recipient should be so reemployed as aforesaid to render City service not included in Federated City Service, the disability retirement allowance payable to him or her for each period of time during which he or she is so reemployed, and during which he or she is still incapacitated for the performance of duty in the position held by him or her at the time of his or her retirement and in any other position in the same classification of positions as the one held by him or her at the time he or she was retired shall be reduced, until he or she attains fifty-five (55) years (sixty-two (62) for Tier 2 member recipients) of age, to an amount which, when added to the compensation earned by him or her in such period in such position, and when also added to all other applicable deductions, if any, required by other provisions of this Chapter 3.28, shall not exceed the amount of the maximum compensation earnable by a person holding during such period the position which he or she held at the time of his or her retirement, or, if that position has been abolished, the maximum compensation earnable by a person holding it immediately prior to its abolition as of the time of its abolition. In no event, however, shall the disability retirement allowance payable for any such period exceed the amount of disability retirement allowance which he or she would have been entitled to for such period in the absence of this Section; and in no event shall such allowance continue to be paid after the recipient's incapacity for the performance of duty in the position held by him or her at the time he or she was retired, or in any other position in the same classification of positions as the one held by him or her at the time of his or her retirement, ceases. Upon such recipient attaining the age of fifty-five (55) (sixty-two (62) years for a Tier 2 member recipient) years, said deductions shall no longer be made. (Prior code § 2904.1466; Ords. 29120, 29904.)

San José Municipal Code § 3.28.1350 Recipient's reentry into federated city service in position and class of positions other than that from which he or she was retired for disability.

3.28.1350 - Recipient's reentry into federated city service in position and class of positions other than that from which he or she was retired for disability. A. A person who has been retired for disability pursuant to any of the provisions of this Part 10 shall not be reemployed by the City to render any Federated City Service unless: 1. The person is first reinstated from disability retirement pursuant to the provisions of this Section or the provisions of Section 3.28.1370; or 2. The person is reemployed pursuant to Section 3.28.1190. B. A person who has been retired for disability pursuant to the provisions of this Part may apply to the Retirement Board in writing for reinstatement from such disability retirement and for reentry into the Federated City Service in a position and class of positions other than the position and class of positions from which the person was retired for disability. The Board may reinstate the person from said disability retirement and permit the person's reentry into the Federated City Service in the new position and class of positions if it finds that based on medical and physical examination he or she is not incapacitated to perform the duties of the office or position in the Federated City Service to which it is proposed he or she be appointed. C. Upon such reinstatement such person may be reemployed to render Federated City Service in the same manner as the City employs persons who have not been retired under this System. D. Upon reinstatement from disability retirement as provided above, the disability retirement allowance of the reinstated person shall be cancelled forthwith and the person shall again become a member of this System as of the date of his or her reentry into the Federated City Service. If reinstated on or after September 30, 2012, where the reinstated person meets the definition of Tier 2 member under Section 3.28.030.28, he or she shall become a Tier 2 member of this System as of the date of his or her reentry into the Federated City Service. Upon again becoming a member, the person shall regain credit for those years of service to which he or she was entitled to credit as of the time he or she retired for disability. (Prior code § 2904.1467; Ords. 21265, 26355, 29120, 29904.)

San José Municipal Code § 3.28.1360 Member not to receive both service retirement and disability retirement.

3.28.1360 - Member not to receive both service retirement and disability retirement. Notwithstanding anything contained in this Chapter 3.28 to the contrary, no member who is retired for service pursuant to the provisions of Part 9 of this chapter shall be eligible for or be entitled to retirement for any disability or for or to any benefits or allowances pursuant to the provisions of this Part 10 while he is so retired for service; and any and all disability retirement allowances otherwise payable to a person shall cease and terminate upon such person being retired for service. (Prior code § 2904.1468.)

San José Municipal Code § 3.28.1370 Medical examination of recipients - Allowance cancellation conditions.

3.28.1370 - Medical examination of recipients - Allowance cancellation conditions. A. The Retirement Board may at any time refer any recipient of a disability retirement allowance to the independent medical panel for the purpose of re-evaluation at a reasonable time and place to be determined by the Board. Upon re-evaluation, the independent medical panel shall determine whether the recipient is still incapacitated for the performance of duty, and if it finds that he or she is not, it shall so declare, whereupon, unless otherwise expressly provided elsewhere in this Part, the disability retirement and disability allowance shall thereupon immediately cease and be deemed terminated. B. Upon any such recipient's application for reinstatement to active duty, the Board shall refer the matter to the independent medical panel for re-evaluation. The recipient of the disability allowance may submit a medical report by his or her own physician or surgeon. Upon the basis of such examination and other relevant evidence, the independent medical panel shall determine whether the recipient is still incapacitated for the performance of duty, and if it finds that he or she is not, it shall so declare, whereupon, unless otherwise expressly provided elsewhere in this Part, the disability retirement and disability allowance shall thereupon immediately cease and be deemed terminated. C. If any recipient of a disability retirement allowance fails or refuses to submit to medical examination or examinations as ordered or required by the independent medical panel, the Board shall thereupon terminate said person's disability retirement and disability retirement allowance, in which event, subject to the following provisions, such person shall have no right to restoration to duty under or by virtue of any provisions of this Chapter, nor shall he or she or any of his or her survivors nor his or her estate thereafter be entitled to any allowances or benefits under this System; provided, however, that if said person should apply for reinstatement of said disability retirement within one (1) year from and after the date of termination of said retirement, and if he or she should prove to the satisfaction of the independent medical panel that his or her disability continues and has not ceased, the Board may reinstate said disability retirement and disability allowance as of the date of the order of such reinstatement or as of such prior date which the Board should find to be just and reasonable based on a determination by the independent medical panel; and provided further, that if said person should die before having said disability retirement and disability retirement allowance reinstated as aforesaid and within one (1) year from and after the date that the Board terminated said disability retirement, then in that event the surviving spouse or surviving child or children of said deceased person or his or her estate may, within said one (1) year from and after the date the Board terminated the retirement allowance, apply to the Board for such survivor's or death benefits, if any, as they would be entitled to if the deceased person's disability retirement had not been terminated as aforesaid, and if they should prove to the satisfaction of the independent medical panel that the deceased person's original disability continued to the time of his or her death, the Board upon a determination by the independent medical panel may grant to them such survivorship or death allowances or benefits as they would have been entitled to if the abovementioned disability retirement had not been terminated as aforesaid. In no event shall said disability retirement or disability retirement allowance be reinstated unless application therefor has been made within one (1) year from and after the Board terminated such retirement; and in no event shall any survivorship allowances or death benefits be granted to anyone pursuant to the provisions of this Section unless application therefor has been made within one (1) year from and after the date the Board terminated said disability retirement. (Prior code § 2904.1469; Ord. 29904.)

San José Municipal Code § 3.28.1380 Reinstatement to duty.

3.28.1380 - Reinstatement to duty. If the independent medical panel determines that the recipient of a disability allowance granted pursuant to the provisions of this Part is no longer incapacitated for performance of duty, and if as of the date of such determination such person is not yet fifty-five (55) years of age (sixty-two (62) years for a Tier 2 member/person), such person shall, subject to the civil service provisions of the City, and subject to the provisions of this Chapter, be reinstated in the position held by him or her at the time he or she retired for disability or in another position in the same classification of positions as the one held by him or her at the time he or she was retired with duties within his or her capacities. No person shall be reinstated to duty if he or she was fifty-five (55) (sixty-two (62) for a Tier 2 member/person) or more years of age on the date that the Board made its determination that he or she was no longer incapacitated for the performance of duty. Upon being reinstated to duty pursuant to the provisions of this Section, said recipient shall again become a member of this System, and shall be entitled to credit for past service the same as if he or she had never been retired for disability. (Prior code § 2904.1470; Ords. 29120, 29904.)

San José Municipal Code § 3.28.1390 Refusal to accept reinstatement.

3.28.1390 - Refusal to accept reinstatement. If, after the independent medical panel finds that the recipient of a disability allowance is no longer incapacitated for duty, and after such person becomes entitled to reinstatement to duty as provided in Section 3.28.1370, such person fails to report for duty, although work is offered him or her in his or her prior position or classification of positions, or rejects an offer of reinstatement and return to duty, all rights granted him or her by this Chapter shall thereupon be canceled, and neither he or she nor his or her survivors shall thereafter be entitled to any benefits provided by this Chapter 3.28. (Prior code § 2904.1471; Ord. 29904.)

San José Municipal Code § 3.28.1400 Recipient attaining age fifty-five (sixty-two for tier 2 recipients) to be deemed permanently disabled.

3.28.1400 - Recipient attaining age fifty-five (sixty-two for tier 2 recipients) to be deemed permanently disabled. Anything elsewhere to the contrary notwithstanding, if a recipient of a disability allowance granted pursuant to the provisions of this Part 10 should, upon attaining the age of fifty-five (55) years (sixty-two (62) years for Tier 2 member recipients), still be incapacitated to perform the duties of the position held by him or her at the time of his or her retirement and of any other position in the same classification of positions as the one held by him or her at the time he or she was retired pursuant to the provisions of this part, he or she shall, for purposes of this Chapter, upon attaining age fifty-five (55) years (sixty-two (62) years for Tier 2 member recipients), be deemed permanently disabled and no longer be subject to recall to duty, and his or her disability retirement allowance may not thereafter be canceled. (Prior code § 2904.1472; Ords. 29120, 29904.)

San José Municipal Code § 3.28.1410 Failure or refusal to submit to medical examination.

3.28.1410 - Failure or refusal to submit to medical examination. If any recipient of the disability retirement allowance fails or refuses to submit to medical examination or examinations as ordered or required by the independent medical panel or administrative law judge, upon certification by the panel to the Board, the Board shall thereupon terminate said person's disability retirement and disability retirement allowance, in which event, subject to the following provisions, such person shall have no right to restoration to duty under or by virtue of any provisions of the Chapter, nor shall he or she or any of his or her survivors nor his or her estate thereafter be entitled to any allowances or benefits under this System; provided, however, that if said person should apply for reinstatement of said disability retirement within one (1) year from and after the date of termination of said retirement, and if he or she should prove to the satisfaction of the independent medical panel that his or her disability continues and has not ceased, upon certification by the independent medical panel to the Board, the Board may reinstate said disability retirement and disability allowance as of the date of the order of such reinstatement or as of such prior date which the Board should find to be just and reasonable based on a determination by the independent medical panel; and provided further, that if said person should die before having said disability retirement and disability retirement allowance reinstated as aforesaid and within one (1) year from and after the date that the Board terminated said disability retirement, then in that event the surviving spouse or surviving child or children of said deceased person or his or her estate may, within said one (1) year from and after the date the Board terminated such retirement allowance, apply to the Board for such survivor's or death benefits, if any, as they would be entitled to if said deceased person's disability retirement had not been terminated as aforesaid, and if they should prove to the satisfaction of the Board that said deceased person's disability retirement had not been terminated as aforesaid, and if they should prove to the satisfaction of the independent medical panel that said deceased person's original disability continued to the time of his or her death, the Board, upon a determination of the independent medical panel, may grant to them such survivorship or death allowances or benefits as they would have been entitled to if the abovementioned disability retirement had not been terminated as aforesaid. In no event shall said disability retirement or disability retirement allowance be reinstated unless application therefor has been made within one (1) year from and after the Board terminated such retirement; and in no event shall any survivorship allowances or death benefits be granted to anyone pursuant to the provisions of this Section unless application therefor has been made within one (1) year from and after the date said Board terminated said disability retirement. (Prior code § 2904.1473; Ord. 29904.)

San José Municipal Code § 3.28.1420 Situations where member is not entitled to disability retirement or disability retirement allowance.

3.28.1420 - Situations where member is not entitled to disability retirement or disability retirement allowance. Anything elsewhere in this chapter to the contrary notwithstanding, no person shall be entitled to any disability retirement or to any disability retirement allowance under the provisions of this chapter in any of the following situations: A. Where the person's disability occurred before the person became a member of this retirement system. B. Where the person's disability occurs after the person ceases to be a member of this retirement system or after the person ceases to be an employee in the federated city service, except as provided in Section 3.28.2420. C. Where the person's disability occurs while the person is on leave of absence from federated city service, including but not limited to situations where such leave of absence is granted for the performance of military, marine, naval or other duty or service for the United States of America or for any other nation, state, person or persons, or is granted for any other purpose or purposes except as follows: 1. The provisions of this paragraph C. shall not apply where the person's disability occurs while the person is on leave of absence with full city compensation and pay. 2. The provisions of this paragraph C. shall not apply where the person's disability occurs while the person is on leave of absence without compensation because of a city hall closure and the time on such leave qualifies as federated city service under Section 3.28.685. (Prior code § 2904.1474; Ord. 24807.)

San José Municipal Code § 3.28.1430 Payment of disability allowances to constitute return and withdrawal of contributions.

3.28.1430 - Payment of disability allowances to constitute return and withdrawal of contributions. Anything elsewhere in this chapter to the contrary notwithstanding, the payment to and receipt by any person of any disability retirement allowance or allowances shall constitute and be deemed to be a return to and withdrawal by such person, to the extent of the amount of such allowance or allowances so paid to and received by him, of any or all contributions theretofore made by such person to the retirement fund prior to the date he was retired for disability, and the amount of such allowance or allowances so paid to and received by him shall be deducted from the amount of accumulated contributions in the fund which are credited to him; provided and excepting, however, that he shall be deemed to still have at least five hundred dollars in the fund for the purposes of qualifying for benefits under this system. Nothing herein contained, however, shall be deemed to restrict the amount of disability allowances payable to any such person to the amount of contributions theretofore contributed by him to the fund, it being the intent that such allowances shall continue to be paid to such person as provided by and subject to other provisions of this part even after all contributions standing to his credit shall have been so withdrawn and exhausted. (Prior code § 2904.1475.)

San José Municipal Code § 3.28.1440 Failure to reinstate recipient of a disability allowance to duty on cessation of disability.

3.28.1440 - Failure to reinstate recipient of a disability allowance to duty on cessation of disability. Anything elsewhere in this chapter to the contrary notwithstanding, if the disability for which a person has been granted a disability retirement or disability retirement allowance pursuant to the provisions of this chapter should cease, and if in addition such person should be then ready, willing and able to be reinstated to duty in and to assume and perform the responsibilities and duties of the position from which he was retired for disability and of any other position in the same class of positions, then in that event such person shall nonetheless continue to be deemed retired for the disability which no longer exists, and continue to be entitled to such disability retirement allowance, if any, as he would be entitled to under the provisions of this part if the disability for which he was retired had not ceased, until he is reinstated to duty in the position from which he was retired or in any other position in the same class of positions, or until he rejects an offer to reinstatement in any such position, or until he refuses or fails to report to duty in any such position when requested to do so, or becomes unable for any reason to accept reinstatement to duty in, or to assume and perform the responsibilities and duties of, the position from which in the same class of positions, whichever is the earlier; provided, however, that nothing herein this section contained shall be deemed to deprive the retirement board of any rights which it might otherwise have under other provisions of this chapter to cancel, terminate, suspend or reduce said retirement or retirement allowance for any reason or reason other than the fact that said disability has ceased. (Prior code § 2904.1476.)

Source: City of San José, Municipal Code (Municode Library, library.municode.com)URL: https://library.municode.com/ca/san_jose/codes/code_of_ordinances?nodeId=TIT3PE_IIREPL_CH3.281975FEEMREPL_PT10REDIFetched: 11/1/2026