2006 New York Code - Retirement; For Accident Disability.

 
    §  13-168  Retirement; for accident disability. a. Medical examination
  of a member in city-service for accident disability and investigation of
  all statements and certifications by him or her  or  on  his  behalf  in
  connection  therewith  shall be made upon the application of the head of
  the agency in which the member is employed, or upon the application of a
  member or of a person acting in his or her  behalf,  stating  that  such
  member  is  physically  or mentally incapacitated for the performance of
  city-service, as a natural and proximate result  of  such  city-service,
  and  certifying  the  time,  place  and  conditions of such city-service
  performed by such member resulting in such alleged disability  and  that
  such  alleged  disability was not the result of wilful negligence on the
  part of such member and that such member should, therefore, be  retired.
  Such  application  shall be filed within two years from the happening of
  such accident, except, however, that such  requirement  as  to  time  of
  filing  shall not apply to any such application which (1) is filed by or
  with respect to a member who is a member of the uniformed force  of  the
  department  of  sanitation (as such force is defined in subdivision a of
  section 13-154 of  this  chapter)  and  (2)  is  based  on  an  accident
  occurring  wholly  on or after July first, nineteen hundred sixty-three.
  If such medical examination and investigation shows that any member,  by
  whom or with respect to whom an application is filed under this section,
  is   physically   or  mentally  incapacitated  for  the  performance  of
  city-service as a natural and proximate result of an  accidental  injury
  received  in  such city-service while a member, and that such disability
  was not the result of wilful negligence on the part of such  member  and
  that  such  member should be retired, the medical board shall so certify
  to the board stating the time, place and conditions of such city-service
  performed by such member resulting in such disability. The  board  shall
  review  such  certification  with  respect  to any issues other than the
  existence or non-existence of  physical  or  mental  incapacitation  and
  shall  determine  the  member's  eligibility  with  respect  to any such
  issues. Upon such certification by the medical  board  of  the  member's
  physical  or  mental  incapacitation  and  a  determination by the board
  finding the member otherwise eligible, such member shall be retired  for
  accident  disability  effective the date the application is filed or the
  date immediately following the last date the member was on the  payroll,
  whichever is later.
    b.  1.  If  such  application is denied solely on the ground that such
  member is not, at the time of such examination, physically  or  mentally
  incapacitated  for the performance of city-service, such application may
  thereafter be renewed during such  member's  city-service  at  any  time
  within  five  years from the happening of the accident but preceding the
  date on which such member shall have reached his or her minimum  service
  retirement  age,  provided  he or she submits himself or herself to such
  further examinations as the medical board may require.
    2. Such further application or applications shall be considered on the
  same basis as the original application.
    3. The medical board  may  at  any  time  within  five  years  of  the
  happening  of  the  accident, upon findings that such member is eligible
  for and should be retired for accident disability in accordance with the
  provisions of this section, certify to the board said  fact.  The  board
  shall  review  such  certification with respect to any issues other than
  the existence or non-existence of physical or mental incapacitation  and
  shall  determine  the  member's  eligibility  with  respect  to any such
  issues. Upon such certification by the medical  board  of  the  member's
  physical  or  mental  incapacitation  and  a  determination by the board
  finding the member otherwise eligible, such member shall be retired  for
  accident disability forthwith.


    4. The provisions of paragraphs one, two and three of this subdivision
  b  shall  not  apply  in  the  case of any member who is a member of the
  uniformed force of  the  department  of  sanitation  and  who  files  an
  application  under  subdivision  a  of this section based on an accident
  occurring wholly on or after July first, nineteen hundred sixty-three.
    5.  (a)  (1)  Notwithstanding  any  provisions  of this code or of any
  general, special or local law, charter or  rule  or  regulation  to  the
  contrary,  any  condition or impairment of health caused by a qualifying
  condition or impairment of health resulting in disability  to  a  member
  who  participated  in  World  Trade  Center  rescue, recovery or cleanup
  operations for a minimum of forty hours shall  be  presumptive  evidence
  that  it  was  incurred in the performance and discharge of duty and the
  natural and proximate result of an accident not caused by such  member's
  own  willful  negligence,  unless  the  contrary  be proved by competent
  evidence. A member shall be eligible for the  presumption  provided  for
  under  this  paragraph  notwithstanding the fact that the member did not
  participate in World Trade Center recovery and cleanup operations for  a
  minimum  of  forty  hours, provided that: (i) the member participated in
  the rescue, recovery, or cleanup operations at the  World  Trade  Center
  site between September eleventh, two thousand one and September twelfth,
  two thousand one; (ii) the member sustained a documented physical injury
  at  the World Trade Center site between September eleventh, two thousand
  one and September  twelfth,  two  thousand  one  that  is  a  qualifying
  condition  or impairment of health resulting in disability to the member
  that prevented the member from continuing to participate in World  Trade
  Center  rescue,  recovery  or  cleanup operations for a minimum of forty
  hours; and (iii) the documented  physical  injury  that  resulted  in  a
  disability  to  the  member that prevented the member from continuing to
  participate in World Trade Center rescue, recovery or cleanup operations
  for a minimum of forty hours is the qualifying condition  or  impairment
  of  health  which  the  member  seeks to be eligible for the presumption
  provided for under this paragraph.
    (2) In order to be eligible for the  presumption  provided  for  under
  subparagraph  one  of  this  paragraph,  a member must have successfully
  passed a physical examination for entry into public service which failed
  to disclose evidence of the qualifying condition or impairment of health
  that formed the basis for the disability.
    (3)  For  purposes  of  this  subdivision,  "qualifying  condition  or
  impairment of health" shall include:
    (i)  Diseases  of  the  upper respiratory tract and mucosae, including
  conditions such as  conjunctivitis,  rhinitis,  sinusitis,  pharyngitis,
  laryngitis,  vocal  cord  disease,  upper  airway  hyper-reactivity  and
  tracheo-bronchitis, or a combination of such conditions;
    (ii) Diseases of  the  lower  respiratory  tract,  including  but  not
  limited to bronchitis, asthma, reactive airway dysfunction syndrome, and
  different types of pneumonitis, such as hypersensitivity, granulomatous,
  or eosinophilic;
    (iii)  Diseases  of  the gastroesophageal tract, including esophagitis
  and reflux disease, either acute  or  chronic,  caused  by  exposure  or
  aggravated by exposure;
    (iv)  Diseases  of  the  psychological  axis, including post-traumatic
  stress  disorder,  anxiety,  depression,  or  any  combination  of  such
  conditions;
    (v)  Diseases  of the skin such as contact dermatitis or burns, either
  acute or chronic in nature, infectious, irritant,  allergic,  idiopathic
  or  non-specific reactive in nature, caused by exposure or aggravated by
  exposure; or


    (vi) New onset diseases resulting from exposure as such diseases occur
  in the future including cancer, chronic obstructive  pulmonary  disease,
  asbestos-related disease, heavy metal poisoning, musculoskeletal disease
  and chronic psychological disease;
    (4)  For  purposes  of  this subdivision, "participated in World Trade
  Center rescue, recovery or cleanup operations"  shall  mean  any  member
  who:
    (A)  participated  in  the rescue, recovery, or clean up operations at
  the World Trade Center site between September eleventh, two thousand one
  and September twelfth, two thousand two, or
    (B) worked at the Fresh Kills Land Fill in New York between  September
  eleventh, two thousand one and September twelfth, two thousand two, or
    (C) worked at the New York city morgue or the temporary morgue on pier
  locations  on the west side of Manhattan between September eleventh, two
  thousand one and September twelfth, two thousand two, or
    (D) manned the barges between the west side of Manhattan and the Fresh
  Kills Land Fill in New York between September eleventh, two thousand one
  and September twelfth, two thousand two.
    For the purposes of this subdivision, "World Trade Center site"  shall
  mean  anywhere  below  a  line  starting from the Hudson River and Canal
  Street; east on Canal Street to Pike Street; south on Pike Street to the
  East River; and extending to the lower tip of Manhattan.
    (5) In order to be eligible for consideration  for  such  presumption,
  such  member  must  file a written and sworn statement with the New York
  city employees' retirement system (NYCERS) on a form  provided  by  such
  system  indicating the dates and locations of employment. Such statement
  must be filed not later than two years following the effective  date  of
  the  chapter  of  the  laws  of  two  thousand  five  which  added  this
  subdivision.
    (6) The NYCERS board of trustees is hereby  authorized  to  promulgate
  rules and regulations to implement the provisions of this paragraph.
    (b)  (1)  Notwithstanding  the  provisions  of  this chapter or of any
  general, special or local law, charter, administrative code or  rule  or
  regulation  to the contrary, if a member who participated in World Trade
  Center rescue, recovery or cleanup operations for  a  minimum  of  forty
  hours,  and  subsequently  retired  on a service retirement, an ordinary
  disability retirement or a performance of duty disability retirement and
  subsequent to such  retirement  incurred  a  disability  caused  by  any
  qualifying  condition  or impairment of health which the NYCERS board of
  trustees  determines,  after  a  determination  of  disability  by   the
  applicable  medical  board,  to have been caused by such member's having
  participated  in  World  Trade  Center  rescue,  recovery   or   cleanup
  operations  for a minimum of forty hours, upon such determination by the
  NYCERS board of trustees, it shall be presumed that such disability  was
  incurred  in  the  performance  and discharge of duty as the natural and
  proximate result of an accident not caused by such member's own  willful
  negligence,  and  that the member would have been physically or mentally
  incapacitated for the performance and discharge of duty of the  position
  from  which  he  or  she  retired had the condition been known and fully
  developed at the time of the member's retirement, unless the contrary is
  proven by competent  evidence.  A  member  shall  be  eligible  for  the
  presumption  provided  for under this paragraph notwithstanding the fact
  that the member did  not  participate  in  World  Trade  Center  rescue,
  recovery  or  cleanup  operations for a minimum of forty hours, provided
  that: (i) the member participated in the rescue,  recovery,  or  cleanup
  operations  at  the  World Trade Center site between September eleventh,
  two thousand one and September  twelfth,  two  thousand  one;  (ii)  the
  member  sustained a documented physical injury at the World Trade Center


  site between September eleventh, two thousand one and September twelfth,
  two thousand one that is a qualifying condition or impairment of  health
  resulting  in  disability  to  the member that prevented the member from
  continuing  to  participate  in  World  Trade Center rescue, recovery or
  cleanup  operations  for  a  minimum  of  forty  hours;  and  (iii)  the
  documented  physical  injury that resulted in a disability to the member
  that prevented the member from continuing to participate in World  Trade
  Center  rescue,  recovery  or  cleanup operations for a minimum of forty
  hours is the qualifying condition or  impairment  of  health  which  the
  member  seeks to be eligible for the presumption provided for under this
  paragraph.
    (2) The reclassification provided for  in  subparagraph  one  of  this
  paragraph shall not be granted, unless:
    (A)  the member files a written and sworn request for reclassification
  with NYCERS on a form provided by such system indicating the  dates  and
  locations of employment within two years following the effective date of
  the  chapter  of  the  laws  of  two  thousand  five  which  added  this
  subdivision; and
    (B) the member must have successfully passed  a  physical  examination
  for  entry  into public service which failed to disclose evidence of the
  qualifying condition or impairment of health that formed the  basis  for
  the disability.
    (3)  The NYCERS board of trustees shall consider a reclassification of
  the member's retirement as an accidental disability retirement effective
  as of the date of such reclassification.
    (4) Such member's retirement option shall not be changed as  a  result
  of such reclassification.
    (5)  The  member's  former  employer  at  the  time  of  the  member's
  retirement shall have  an  opportunity  to  be  heard  on  the  member's
  application  for  reclassification  by  the  NYCERS  board  of  trustees
  according to procedures developed by the retirement system.
    (f) The NYCERS board of trustees is hereby  authorized  to  promulgate
  rules and regulations to implement the provisions of this paragraph.