Judge orders Fund to pay disability claim of retiree

Superior Court Associate Judge David A. Wiseman yesterday ordered the NMI Retirement Fund to grant interim disability payments to a retiree who has a claim for disability.

Wiseman ordered the Fund’s board of trustees and administrator Mark A. Aguon Aguon to immediately pay Jesus A. Arriola interim disability payments, as ordered by the Fund’s hearing officer on Nov. 1, 2008.

“[Arriola] has lived without income since June of 2007. Continuing to delay compliance of the hearing officer’s order to make interim payments merely because an appeal was filed is unacceptable,” said the judge in granting Arriola’s petition.

Wiseman noted that if an unsatisfied party is allowed to disregard the decision of the hearing officer merely because they intend to appeal, the orders of the hearing officer will be nullified.

“This court cannot allow a party to treat the order of the hearing officer as mere suggestions pending a second opinion, rather than an order that must be complied with,” he said.

Permitting Aguon to ignore the hearing officer’s decision without asking for a stay of the order creates an indefinite stalling of every decision of the hearing officer.

Wiseman said he shall maintain jurisdiction over all matters in this lawsuit and that, pending the outcome of the appeal, he will revisit Arriola’s petition for a writ and issue an order accordingly.

Last December, Arriola, through counsel Jeanne H. Rayphand, filed a new petition in the Superior Court to compel Aguon to immediately pay him his disability retirement benefits.

Arriola asked the court to order Aguon to pay him the sum of 66 2/3 percent of the salary he was receiving at the time of his disability and separation from service of the government.

“Commonwealth law requires that retirement and disability payments commence on the very next pay day following the retirement or disability so that government employees who are members of the Retirement Fund do not have a break in income and so they and their families do not suffer from loss of income whenever the administrative processes are delayed,” said Rayphand of the Northern Marianas Protection and Advocacy Systems Inc.,

Arriola previously filed the same petition for a writ of mandamus but Wiseman denied the request in September 2008.

Wiseman ruled that Arriola has been unable to obtain certification of his disability from a vocational rehabilitation counselor. Wiseman said the petitioner has also failed to establish that he has a clear right to the relief sought.

Wiseman, however, urged the Fund to act with all due urgency to approve or disapprove Arriola’s disability application without further delay.

After Wiseman’s denial of the petition, the Fund hearing officer entered on Nov. 1, 2008, an order granting interim disability payments to Arriola, Rayphand said.

The Fund appealed the hearing officer’s decision to its board of trustees and the board set a hearing on the appeal for Jan. 13, 2009.

Rayphand said that on Nov. 7, 2008, Public Law 16-19 was signed into law, eliminating the requirement by a vocational rehabilitation counselor.

Arriola asked the court to instruct Aguon to pay interim semimonthly disability payments to him until the board of trustees has determined whether he is entitled to disability pension.

Wiseman heard Arriola’s second petition last Thursday. Attorney James E. Hollman appeared on behalf of Aguon.

In his order, Wiseman ruled that the hearing officer’s order was unequivocal—that Arriola is entitled to immediate interim disability benefits.