TITLE 1: GOVERNMENT
DIVISION 8: PUBLIC EMPLOYMENT
§ 8347. Disability: Administrative Provisions. (a) A member shall be considered totally and perm anently disabled after the board receives writt en certification by at least t wo licensed and practic ing physicians selected by the board, at least one of whom is a spe cialist in the area of the disabilit y being evaluated, that the member is totally and perm anently disabled for the further performance of t he duties of any assigned position in the service of the government. If, upon consideration of the reports of the ph ysicians and any other evidence presented to the board by the member or others interested therein, the board finds the member to be totally and permanently disabled, it shall grant the member a disability retirement annuity upon written certification that the member has been separated from the service of the e mployer because of total disability of such nature as to re asonably prevent further service for t he employer, and as a consequence is not entitled to com pensation from the government. (b) At least once each year during the first five y ears following the allowance of a disability annuity to any member, and at least once in every three-year period thereafter, the board shall requi re any disability annuitant to undergo a medical examination to be made at the place of resi dence of the annuitant, or at any other place mutually agreed upon, by a physician or physicians engaged by the board. If any examination indicates that the annuitant is no longer physically or mentally incapacitated for service, or that the annuitant is engaged or is able to engage in a gainful occupation, pa yments of the di sability annuity by the fund shall be discontinued. (c) Notwithstanding t he foregoing sect ion, if t he annuitant becomes able to resume a gainful occupation but the earnings therefrom are less than the salary at the date of retirement or the salary currently paid for similar positions, whichever is lower, the board shall continue th e disability allowance in an amount which when added to the annuitant’ s earnings from a gainful occupati on, shall not exceed his or her salary at the date of retirement. (d) If any dis ability annuitant refuses to submit to the exam inations as herein provided, payments by the fund shall be discontinued until the member submits to such examinations. If the refusal continues for one y ear, all fights of the member in any disability annuity shall be permanently revoked by the board. (e) Any disability annuitant restored to active service shall have deductions taken for the fund and u pon subsequent retirement have his retirement allowance based upon all allowable service, including that upon which the disabili ty allowance is based. (f) An occupational disability is a disability which is the natural and proximate result of an accident occurring while in the performance of duty at some definite time or place, or as the cum ulative result of some occupational hazard, through no willful negligence on the part of the employee. (g) If any m ember who receives any payment when a disability has been sustained under circumstances creating in so me person or entit y a legal liabilit y to pay damages for loss of income, and the disabled me mber elects to clai m a disability annuity, the fund shall be subrogated to the rights of the disabl ed member insofar as any claim for loss of wages exist. In the ev ent of such subro-
TITLE 1: GOVERNMENT
DIVISION 8: PUBLIC EMPLOYMENT
gation, the board in its sole discretion may decide what action to take, if any, to enforce such rights as it has attained b y the subrogation. Such subrogation shall not limit or effect rights to other claims, including but not lim ited to claims for pain and suffering, mental anguish, loss of consortium that the member may have against the person or entit y causing the disability. Any recovery by way of such subrogation in excess of the actuarially calculated present value of the disability annuity shall be returned to the member. (h) Any annuity received by a class I or cla ss II member as a result of any disability shall be reduced by an amount equal to any sum the member is entitled to from U.S. Social Security, any workers’ compensation insurance or any other insurance covering such disability. Source: PL 6-17, ch. 3, § 8337, modified; (a), (b), (d), and (h) amended by PL 13-60, § 6(c) and (i), respectively; (a) and (b) amended by PL 16-19 § 2. Commission Comment: PL 13-60 was e nacted on December 5, 2003 and contained, in addition to other enactments, a sh ort title, fin dings and purpose, severability, and savings clause provisions. See the comment to 1 CMC § 8253 regarding PL 13-60. PL 16-19 took effect on November 7, 2008 and included severability and savings clause provisions as well as the following: Section 1. Findings and Purpose. The Commonwealth Legislature finds that Public Law 1 3-60 amended, among other provisions, Title 1 CMC § 8347, to require that potential disabled retirees be evaluated by two physicians and a vocational rehabilitation counselor. The Legislature finds that this requirement has created a hards hip for some retirees and for the Retire ment Fund because a pool of qualified vocational rehabilitation counselors is not always readily available. The Legislature further finds that requiring two physicians, one of whom is a specialist in the area of the disability being evaluated, to certify the disability is adequate protection for th e N.M.I. Retirem ent Fund and its members.