H. B. 4181
(By Delegate Spencer)
(By Request of the Consolidated Public Retirement Board)
[Introduced January 26, 2010; referred to the
Committee on Pensions and Retirement then Finance.]
A BILL to amend and reenact §5-10-25 and §18-7A-25 of the Code of
West Virginia, 1931, as amended, all relating to qualifying
for total and permanent disability retirement in the West
Virginia Public Employees Retirement System and the State
Teachers Retirement System.
Be it enacted by the Legislature of West Virginia:
That §5-10-25 and §18-7A-25 of the Code of West Virginia,
1931, as amended, be amended and reenacted, all to read as follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD OF
PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS,
OFFICES, PROGRAMS, ETC.
ARTICLE 10. WEST VIRGINIA PUBLIC EMPLOYEES RETIREMENT ACT.
§5-10-25. Disability retirement.
(a) Upon the application of a member or former member of the retirement system, or his or her present or past employing
authority, any member or former member who is in the employ of a
participating public employer or was in the employ of a
participating public employer on a date which is twelve months or
less from the date upon which the former member became
incapacitated, who has ten or more years of credited service of
which three years is contributing service, and who becomes totally
and permanently incapacitated for employment, by reason of a
personal injury or disease
not due to vicious habits, intemperance
or willful misconduct on his or her part, may be retired by the
board if after a medical examination of the said member or former
member made by or under the direction of a medical committee
consisting of two physicians, one of whom shall be named by the
board, and one by the said member or former member, the said
medical committee reports, in writing, to the board that the said
member or former member is physically or mentally totally
incapacitated for employment, that such incapacity will probably be
permanent, and that the said member or former member should be
retired. In the event the two above-mentioned examining physicians
do not agree in their findings, then the board may, at its
discretion, appoint a third physician to examine said member or
former member and, based upon the third physician's report in
writing, the board may retire said member or former member. A
former member who has not been employed by a participating public employer may receive disability retirement under the provisions of
this subsection if, in the opinion of the medical committee, the
incapacity occurred during the time that the former member was
employed by a participating public employer and the incapacity
otherwise qualifies the former member for retirement under this
subsection.
(b) A member with less than ten years of credited service
shall have the service requirement provided for in subsection (a)
above (including the requirement of three years contributing
service) waived in the event: (1) The board finds his or her total
and permanent disability to be the natural and proximate result of
a personal injury or disease arising out of and in the course of
his or her actual performance of duty in the employ of a
participating public employer; and (2) he or she is receiving or
has received workers' compensation benefits on account of such
physical or mental disability.
(c) For any member or former member retiring and any member
retired, as of March 1, 1970, he or she shall receive a straight
life annuity computed according to section twenty-two hereof and he
or she shall have the right to elect an option provided
for in
section twenty-four hereof
: Provided, That his or her straight
life annuity payable to his or her attainment of age sixty-five
years may not be less than fifty percent of his or her final
average salary; and his or her said straight life annuity payable from and after his or her attainment of age sixty-five years may
not be less than twenty percent of his or her final average salary
:
Provided, however, That his or her
said annuity shall be subject to
section twenty-six hereof.
§18-7A-25. Eligibility for retirement allowance.
(a) Any member who has attained the age of sixty years or who
has had thirty-five years of total service as a teacher in West
Virginia, regardless of age, is eligible for an annuity. No new
entrant nor present member is eligible for an annuity, however, if
either has less than five years of service to his or her credit.
(b) Any member who has attained the age of fifty-five years
and who has served thirty years as a teacher in West Virginia is
eligible for an annuity.
(c) Any member who has served at least thirty but less than
thirty-five years as a teacher or nonteaching member in West
Virginia and is less than fifty-five years of age is eligible for
an annuity, but the annuity shall be the reduced actuarial
equivalent of the annuity the member would have received if the
member were age fifty-five at the time
such annuity was applied for
of application for the annuity.
(d) The request for any annuity shall be made by the member in
writing to the retirement board,
but except in case of retirement
for disability, the written request may be made by either the
member or the employer.
(e) A member is eligible for annuity for disability if he or
she satisfies the conditions in either subdivision (1) or (2) of
this subsection and meets the conditions of subdivision (3) of this
subsection as follows:
(1) His or her service as a teacher or nonteaching member in
West Virginia must total at least ten years and service as a
teacher or nonteaching member must have been terminated because of
disability, which disability must have caused absence from service
for at least six months before his or her application for
disability annuity is approved.
(2) His or her service as a teacher or nonteaching member in
West Virginia must total at least five years and service as a
teacher or nonteaching member must have been terminated because of
disability, which disability must have caused absence from service
for at least six months before his or her application for
disability annuity is approved and the disability is a direct and
total result of an act of student violence directed toward the
member.
(3) An examination by a physician or physicians selected by
the retirement board must show that the member is at the time
mentally or physically incapacitated
for service as a teacher, that
for that service to serve in his or her current occupation and that
the incapacitation is not due to vicious habits, intemperance or
willful misconduct on his or her part and that the disability is total and likely to be permanent and that he or she should be
retired in consequence of the disability.
(f) Continuance of the disability of the retired member shall
be established by medical examination, as prescribed in subdivision
(3), subsection (e) of this section, annually for five years after
retirement, and thereafter at such times required by the retirement
board. Effective July 1, 1998, a member who has retired because of
a disability may select an option of payment under the provisions
of section twenty-eight of this article
: Provided, That any option
selected under the provisions of section twenty-eight of this
article shall be in all respects the actuarial equivalent of the
straight life annuity benefit the disability retiree receives or
would receive if the options under
said the section were not
available and that no beneficiary or beneficiaries of the
disability annuitant may receive a greater benefit, nor receive any
benefit for a greater length of time, than the beneficiary or
beneficiaries would have received had the disability retiree not
made any election of the options available under said section. In
determining the actuarial equivalence, the board shall take into
account the life expectancies of the member and the beneficiary
:
Provided, however, That the life expectancies may at the discretion
of the board be established by an underwriting medical director of
a competent insurance company offering annuities. Payment of the
disability annuity provided in this article shall cease immediately if the retirement board finds that the disability of the retired
teacher member no longer exists, or if the retired
teacher member
refuses to submit to medical examination as required by this
section.
NOTE: The purpose of this bill is to clarify the circumstances
under which a member may qualify for total and permanent disability
retirement under the provisions of the West Virginia Public
Employees Retirement System and the state Teachers' Retirement
System.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.