Request By:
Mr. Vic Hellard, Jr., Director
Legislative Research Commission
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising a question relative to KRS 95.624(3)(a) concerning the payment of disability benefits to a member of a fire department in a city of the third class which operates a pension plan pursuant to KRS 95.621 to 95.629.
You state that a city firefighter became totally disabled due to a work-related injury although the determination of total disability was not made until several months after the injury. The city stopped paying the firefighter's salary in March of 1981 and paid no benefits for a five month period. After that period of time, the person was determined to be permanently and totally disabled and the city then began paying pension benefits.
The firefighter maintains that he is due payments for temporary total disability under KRS 95.624(3)(a) for the period from when his salary stopped until his pension payments for total and permanent disability began. Although the extent of the disability was initially unknown, he was subsequently determined to be totally disabled.
You say the city maintains that since the extent of the disability was undetermined initially, it was not under an obligation to make temporary disability payments and it has refused to pay benefits for the time period in question.
Your question to this office is as follows:
"Under KRS 95.624(3)(a) does a city of the third class operating its pension plan pursuant to KRS 95.621 have the discretion to deny a firefighter injured in the line of duty, who is ultimately determined to be totally disabled, temporary disability payments during the period when the extent of his disability was undetermined? "
At the outset we direct your attention to Policemen's and Firemen's Retirement Fund of the City of Newport v. Shields, Ky., 521 S.W.2d 82,83 (1975), where the court said, "The rights of persons participating in a pension plan are governed entirely by the terms of the pension plan and the statutes under which it is operated." See also OAG 80-166, copy enclosed.
KRS 95.624(3)(a) states:
"(3) The pensions or benefits paid for disability or death from the policemen's and firefighter's pension fund in cities of the third class shall be as follows:
(a) If any member of the police or fire department becomes temporarily totally disabled, physically or mentally, the board of trustees of the pension fund shall order paid to him monthly, during his disability, until he has recovered and returned to active duty a sum of not more than one-half (1/2) his salary per month, the amount to be determined by the board. This provision shall not apply if a salary is paid during the same period."
As we understand it, KRS 95.624(3)(a) deals with the payment of pension benefits for a period of temporary and total disability. The disability must be both total and of a temporary nature before this statute comes into play because if the disability is of a permanent nature the applicable statute is KRS 95.624(3)(b). The total and temporary disability referred to in KRS 95.624(3)(a) is only compensable during the period of such disability which obviously is an attempt to deal with disability of less than a permanent nature. By requiring payments only during periods of temporary and total disability the board of trustees of the pension fund can terminate payments when the temporary and total disability ends or it can invoke the provisions of another section of the statute if the disability is determined to be of a permanent nature necessitating the firemen's retirement from service in the fire department. See KRS 95.624(3)(b).
The key in the application of KRS 95.624(3)(a) is a finding of temporary and total disability with payments made only during the period of temporary and total disability. The board of trustees need only find, on the basis of the evidence presented, that the applicant is temporarily totally disabled. Such a finding implies that the disability is not of a permanent nature (although such a finding could be made at a later date). A finding of how long the temporary and total disability will last is not a prerequisite to ordering payments pursuant to KRS 95.624(3)(a) as the payments can be terminated when the temporary aspect of the problem is resolved by either recovery or a progression to a state of permanent disability. In 60 Am. Jr. 2d Pensions and Retirement Funds, § 61, it is stated that pensions for policement and firemen on the basis of disability may be limited to the period of actual disability.
KRS 95.623 authorizes the board of trustees of the pension fund to make all necessary rules for its government in the discharge of its duties. This is sufficient authority for the board to enact rules not only to enable it to determine to its satisfaction the eligibility of members for pension benefits, but to govern the procedures in connection with the awarding of benefits. See OAG 82-240, copy enclosed, and City of Lexington v. Wilburn, Ky., 265 S.W.2d 777 (1954). Thus, the board could enact procedures relating to those receiving benefits for temporary and total disability by, for example, requiring periodic reexaminations or reevaluations of their conditions.
In conclusion, it is our opinion that a city which operates its policemen's and firemen's pension fund pursuant to KRS 95.621 to 95.629 should award benefits to a fireman under KRS 95.624(3)(a) if it finds on the basis of the evidence presented that the fireman is temporarily totally disabled even if it cannot initially determine the duration of that disability as it is only obligated to pay under that statute during the existence of the temporary and total disability.