Temporary Disability Benefits thru OP&F
Kevin Powers, Esq.
For years the accepted wisdom was that you could not obtain disability benefits through any state pension fund for a temporary condition. Only permanently disabling conditions were thought to qualify.
However, the Ohio Supreme Court recently ruled that an officer temporarily disabled by depression unrelated to his work was entitled to disability benefits through the Ohio Police & Fire Pension Fund.
In the case of State ex rel. Tindira v. OP & F, 130 Ohio St. 3d 62, the Court seized on the difference in language under two different sections of R.C. 742.38. Under 742.38 (b), it states:
“(b)” ‘Permanently disabled’ means a condition of disability from which there is no present indication of recovery.
“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.
Further on in the same statute, however, it states the following:
“4) A member of the fund who has completed five or more years of active service in a police or fire department and has incurred a 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 disabled, the board shall consider standards adopted under division (C) of this section applicable to the determination.”
The first paragraph uses the qualifiers “permanently and totally” in describing the disability. The second paragraph eliminated those modifiers. The Court thus reasoned that a temporary disability could qualify for benefits under the latter section assuming the other requirements were met.
While the Court’s analysis is hard to argue with it seems doubtful that the state legislature intended such an outcome. The Court’s interpretation creates an anomaly:
If you are injured on-the-job, your disability must be permanent and total. But if you are injured off-the-job, the disability need not be permanent. Presumably it need not be totally disabling, either.
If the legislature did not intend such an outcome I expect they will get busy drafting legislation to fix this.