§ 46-35. Disability.

(a)

Disability benefits.

(1)

A participant may retire from the service of the city under this plan at any time if the participant becomes totally and permanently disabled as defined in paragraph (2), and the disability occurred in the line of duty, or after completing ten creditable years of service if the disability occurred other than in the line of duty, by reason of any cause other than a cause set out in subsection (c). Such retirement shall herein be referred to as "disability retirement."

(2)

A participant will be considered totally disabled if, in the opinion of the board, he or she is wholly prevented from rendering useful and efficient service as a firefighter; and a participant will be considered permanently disabled if, in the opinion of the board, he or she is likely to remain so disabled continuously and permanently from a cause other than is specified in subsection (c). "Useful and efficient service as a firefighter" shall include the ability to perform jobs of an administrative nature including, but not be limited to, the ability to perform fire inspections on residential and commercial buildings.

(3)

Eligibility for disability benefits. Subject to subsection d., below, only active members of the system on the date the board determines entitlement to a disability benefit are eligible for disability benefits.

a.

Terminated persons, either vested or non-vested, are not eligible for disability benefits.

b.

If a member voluntarily terminates his employment, either before or after filing an application for disability benefits, he is not eligible for disability benefits.

c.

If a member is terminated by the city for any reason other than for medical reasons, either before or after he files an application for disability benefits, he is not eligible for disability benefits.

d.

The only exception to subsection a. above is:

1.

If the member is terminated by the city for medical reasons and he has already applied for disability benefits before the medical termination, or;

2.

If the member is terminated by the city for medical reasons and he applies within 30 days after the medical termination date.

If either subsections d.1., or d.2., above applies, the member's application will be processed and fully considered by the board.

(b)

In-line of duty presumptions.

(1)

Presumption. Any condition or impairment of health of a participant caused by hypertension or heart disease shall be presumed to have been suffered in line of duty unless the contrary is shown by competent evidence, provided that such participant shall have successfully passed a physical examination upon entering into such service, which examination failed to reveal any evidence of such condition; and provided further, that such presumption shall not apply to benefits payable or granted in a policy of life insurance or disability insurance.

(2)

Additional presumption. The presumption provided for in this paragraph (2) shall apply only to those conditions described in this paragraph (2) that are diagnosed on or after January 1, 1996.

a.

Definitions. As used in this subsection (b)(2), the following definitions apply:

1.

"Body fluids" means blood and body fluids containing visible blood and other body fluids to which universal precautions for prevention of occupational transmission of blood-borne pathogens, as established by the centers for disease control, apply. For purposes of potential transmission of meningococcal meningitis or tuberculosis, the term "body fluids" includes respiratory, salivary, and sinus fluids, including droplets, sputum, and saliva, mucous, and other fluids through which infectious airborne organisms can be transmitted between persons.

2.

"Emergency rescue or public safety participant" means any participant employed full time by the city as a firefighter, paramedic, emergency medical technician, law enforcement officer, or correctional officer who, in the course of employment, runs a high risk of occupational exposure to hepatitis, meningococcal meningitis, or tuberculosis and who is not employed elsewhere in a similar capacity. However, the term "emergency rescue or public safety member" does not include any person employed by a public hospital licensed under F.S. Ch. 395, or any person employed by a subsidiary thereof.

3.

"Hepatitis" means hepatitis A, hepatitis B, hepatitis non-A, hepatitis non-B, hepatitis C, or any other strain of hepatitis generally recognized by the medical community.

4.

"High risk of occupational exposure" means that risk that is incurred because a person subject to the provisions of this subsection, in performing the basic duties associated with his or her employment:

i.

Provides emergency medical treatment in a non-health-care setting where there is a potential for transfer of body fluids between persons;

ii.

At the site of an accident, fire, or other rescue or public safety operation, or in an emergency rescue or public safety vehicle, handles body fluids in or out of containers or works with or otherwise handles needles or other sharp instruments exposed to body fluids;

iii.

Engages in the pursuit, apprehension, and arrest of law violators or suspected law violators and, in performing such duties, may be exposed to body fluids; or

iv.

Is responsible for the custody, and physical restraint when necessary, of prisoners or inmates within a prison, jail, or other criminal detention facility, while on work detail outside the facility, or while being transported and, in performing such duties, may be exposed to body fluids.

5.

"Occupational exposure," in the case of hepatitis, meningococcal meningitis, or tuberculosis, means an exposure that occurs during the performance of job duties that may place a worker at risk of infection.

b.

Presumption. Any emergency rescue or public safety participant who suffers a condition or impairment of health that is caused by hepatitis, meningococcal meningitis, or tuberculosis, that requires medical treatment, and that results in total or partial disability or death shall be presumed to have a disability suffered in the line of duty, unless the contrary is shown by competent evidence; however, in order to be entitled to the presumption, the participant must, by written affidavit as provided in F.S. § 92.50, verify by written declaration that, to the best of his or her knowledge and belief:

1.

In the case of a medical condition caused by or derived from hepatitis, he has not:

i.

Been exposed, through transfer of bodily fluids, to any person known to have sickness or medical conditions derived from hepatitis, outside the scope of his or her employment;

ii.

Had a transfusion of blood or blood components, other than a transfusion arising out of an accident or injury happening in connection with his or her present employment, or received any blood products for the treatment of a coagulation disorder since last undergoing medical tests for hepatitis, which tests failed to indicate the presence of hepatitis;

iii.

Engaged in unsafe sexual practices or other high-risk behavior, as identified by the centers for disease control or the surgeon general of the United States or had sexual relations with a person known to him to have engaged in such unsafe sexual practices or other high-risk behavior; or

iv.

Used intravenous drugs not prescribed by a physician.

2.

In the case of meningococcal meningitis, in the ten days immediately preceding diagnosis he was not exposed, outside the scope of his or her employment, to any person known to have meningococcal meningitis or known to be an asymptomatic carrier of the disease.

3.

In the case of tuberculosis, in the period of time since the participant's last negative tuberculosis skin test, he has not been exposed, outside the scope of his or her employment, to any person known by him to have tuberculosis.

c.

Immunization. Whenever any standard, medically recognized vaccine or other form of immunization or prophylaxis exists for the prevention of a communicable disease for which a presumption is granted under this section, if medically indicated in the given circumstances pursuant to immunization policies established by the advisory committee on immunization practices of the U.S. Public Health Service, an emergency rescue or public safety participant may be required by the city to undergo the immunization or prophylaxis unless the participant's physician determines in writing that the immunization or other prophylaxis would pose a significant risk to the participant's health. Absent such written declaration, failure or refusal by an emergency rescue or public safety participant to undergo such immunization or prophylaxis disqualifies the participant from the benefits of the presumption.

d.

Record of exposures. The city shall maintain a record of any known or reasonably suspected exposure of an emergency rescue or public safety participant in its employ to the disease described in this section and shall immediately notify the participant of such exposure. An emergency rescue or public safety participant shall file an incident or accident report with the city of each instance of known or suspected occupational exposure to hepatitis infection, meningococcal meningitis, or tuberculosis.

e.

Required medical tests; preemployment physical. In order to be entitled to the presumption provided by this section:

1.

An emergency rescue or public safety participant must, prior to diagnosis, have undergone standard, medically acceptable tests for evidence of the communicable disease for which the presumption is sought, or evidence of medical conditions derived therefrom, which tests fail to indicate the presence of infection. This paragraph does not apply in the case of meningococcal meningitis.

2.

On or after June 15, 1995, an emergency rescue or public safety participant may be required to undergo a preemployment physical examination that tests for and fails to reveal any evidence of hepatitis or tuberculosis.

(c)

Conditions disqualifying disability benefits. Each participant who is claiming disability benefits shall establish, to the satisfaction of the board, that such disability was not occasioned primarily by:

(1)

Excessive or habitual use of any drugs, intoxicants or narcotics.

(2)

Injury or disease sustained while willfully and illegally participating in fights, riots or civil insurrections or while committing a crime.

(3)

Injury or disease sustained while serving in any branch of the Armed Forces.

(4)

Injury or disease sustained by the participant after his or her employment as a firefighter with the City of Deltona shall have terminated.

(d)

Physical examination requirement. A participant shall not become eligible for disability benefits until and unless he undergoes a physical examination by a qualified physician or physicians and/or surgeon or surgeons, who shall be selected by the board for that purpose. The board shall not select the participant's treating physician or surgeon for this purpose except in an unusual case where the board determines that it would be reasonable and prudent to do so.

Any retiree receiving disability benefits under provisions of this ordinance may be required by the board to submit sworn statements of his or her condition accompanied by a physician's statement (provided at the retiree's expense) to the board annually and may be required by the board to undergo additional periodic re-examinations by a qualified physician or physicians and/or surgeon or surgeons who shall be selected by the board, to determine if such disability has ceased to exist. If the board finds that the retiree is no longer permanently and totally disabled to the extent that he is unable to render useful and efficient service as a firefighter, the board shall recommend to the city that the retiree be returned to performance of duty as a firefighter, and the retiree so returned shall enjoy the same rights that he had at the time he was placed upon pension. In the event the retiree so ordered to return shall refuse to comply with the order within 30 days from the issuance thereof, he shall forfeit the right to his or her pension.

The cost of the physical examination and/or re-examination of the participant claiming or the retiree receiving disability benefits shall be borne by the fund. All other reasonable costs as determined by the board incident to the physical examination, such as, but not limited to, transportation, meals and hotel accommodations, shall be borne by the fund.

If the retiree recovers from disability and reenters the service of the city as a firefighter, his or her service will be deemed to have been continuous, but the period beginning with the first month for which he received a disability retirement income payment and ending with the date he reentered the service of the city will not be considered as credited service for the purposes of the system.

The board shall have the power and authority to make the final decisions regarding all disability claims.

(e)

Disability payments . The benefits payable to a participant who retires from the service of the city due to total and permanent disability which occurred in the line of duty is the accrued normal retirement benefit paid monthly for life or ten years certain, but shall not be less than 60 percent of his or her average final compensation at the time of disability. If after attaining ten creditable years of service in the plan the disability is other than in the line of duty, the participant's monthly benefit shall be the accrued normal retirement benefit, but shall not be less than 25 percent of their average final compensation at the time of disability. No disability benefits shall be payable to a participant who has less than ten creditable years of service for a disability, other than in the line of duty.

The monthly retirement income to which a participant is entitled in the event of his or her disability retirement shall be payable on the first day of the first month after the board determines such entitlement. However, the monthly retirement income shall be payable as of the date the board determines such entitlement and any portion due for a partial month shall be paid together with the first payment. Notwithstanding the previous sentence, in the event the city involuntarily terminates the participant's employment for medical reasons prior to the date the board determines the entitlement to the disability benefit, the monthly retirement benefits shall be payable retroactively to the later of the date of the application for disability benefits or the date that the city involuntarily terminates the participant's employment for medical reasons. The last payment will be the payment due next preceding the date of such recovery or, if the participant dies without recovering from the disability, the payment due next preceding his or her death or the 120th monthly payment, whichever is later. In lieu of the benefit payment provided in this paragraph a participant may select an optional form as provided in section 46-37. Any monthly retirement income payments due after the death of a disabled participant shall be paid to the participant's designated beneficiary (or beneficiaries) as provided in section 46-34 or section 46-38, whichever applies.

(Ord. No. 02-2005, § 1, 2-7-2005; Ord. No. 20-2010, § 9, 10-18-2010; Ord. No. 34-2014, § 3, 1-20-2015; Ord. No. 17-2016, § 5, 5-16-2016; Ord. No. 13-2018, § 2, 5-21-2018)