2006 New York Code - Medical Review In Member Disability Cases.

 
    § 13-169 Medical review in member disability cases. a. As used in this
  section, the following terms shall mean and include:
    (1)  "Bargaining  representative".  The  public  employee organization
  which is authorized to represent a member  for  purposes  of  collective
  bargaining with the city.
    (2)  "Panel  of medical experts". Those physicians whose names are set
  forth in a list of medical experts prepared annually by the commissioner
  of health and filed in his or her office and with the executive director
  of the retirement system  on  or  before  July  first.  The  experts  so
  designated  shall  be physicians having qualifications as specialists in
  such  fields  of  medicine  as  such  commissioner  deems  an  essential
  background  (i)  for  ascertaining,  in  cases  where an application for
  disability retirement is filed by or with respect to a  member,  whether
  such  member is physically or mentally incapacitated for the performance
  of city-service, and (ii) for rendering of reports or certifications  as
  to  diagnosis  and  issues  of  causal relationship with respect to such
  applications. Each of such physicians shall have had, prior  to  his  or
  her  designation,  at  least  ten  years  of  practice in the field with
  respect to which he or she is designated. The names of  such  physicians
  shall  be  separately  grouped  in such list, according to the fields of
  medicine in which they are expert, and the names in each group shall  be
  consecutively numbered.
    (3) "Party entitled to review". Either of the following:
    (i) the bargaining representative of such member; or
    (ii) the appropriate agency head.
    b. (1) In any case where an application for retirement of a member for
  disability  has  been filed pursuant to section 13-167 or 13-168 of this
  chapter, the executive director of the retirement system, promptly after
  the board constituting the head of the retirement  system  acts  on  the
  report  or  certification  of  the  medical  board  with respect to such
  application, shall give notice of such action by the board  constituting
  such  head  to  such  member  and to the appropriate agency head. Within
  fifteen days after such notification, any party entitled to  review  may
  file  with  the  executive  director  a  written  request that a special
  medical committee, as provided for in this  section,  shall  review  the
  conclusions  and  recommendations  of the medical board set forth in its
  report or certification and the determination of the board  of  trustees
  made pursuant to section 13-168 of this chapter.
    (2)  (i)  Any  request for review filed by a bargaining representative
  with respect to such application for disability retirement shall be void
  and of no effect unless such request includes a waiver,  as  hereinafter
  provided,  duly  executed  and acknowledged by the member or by a person
  acting in his or her behalf as hereinafter provided. Such waiver may  be
  executed  by a person acting in behalf of such member in any case where,
  at the time of  the  execution  of  such  waiver  by  such  person,  the
  circumstances   are   such  that  if  such  application  for  disability
  retirement had not been previously filed by  or  with  respect  to  such
  member,  such person would at such time of execution be authorized under
  the provisions of section 13-167 or 13-168 of this chapter, as the  case
  may  be,  to  file,  as  a  person  acting  in behalf of such member, an
  application for disability retirement of such member.
    (ii) Such waiver shall provide that  the  execution  thereof  by  such
  member  or  by  a  person  acting  in  his  or her behalf as hereinabove
  authorized shall constitute an agreement by such member that his or  her
  application  for disability retirement under section 13-167 or 13-168 of
  this chapter, as the case may be, shall be disposed of by action of  the
  board  constituting  the  head  of the retirement system pursuant to the
  provisions of  this  section,  that  such  action  shall  be  final  and


  conclusive, and that he or she waives any and all rights which he or she
  might  otherwise  have  to  seek or obtain any other disposition of such
  application  for  disability  retirement  by  court  or   administrative
  proceedings  or  otherwise.  A  waiver  so  executed  and filed shall be
  effective and binding upon such member, in accordance with its terms.
    c. Promptly after the filing of a request for review to be made  by  a
  special  medical committee, the executive director shall transmit a copy
  of such request and of the report or certification of the medical  board
  to the commissioner of health.
    d.  The commissioner, upon receipt of such report or certification and
  request, shall promptly designate three of the physicians on  the  panel
  of  medical  experts  as  a special medical committee for the purpose of
  reviewing the recommendations and conclusions of the  medical  board  in
  such  case.  Such  physicians  shall  be selected by him or her from the
  panel group possessing the specialist qualifications deemed essential by
  him or her for such review. All selections  of  physicians  pursuant  to
  this  subdivision  d shall be made in order of numerical standing in the
  group from which selection is to be made, and on the basis of continuous
  rotation within the group.
    e. (1) Promptly after making the selection prescribed by subdivision d
  of this section, the commissioner of health shall  notify  the  selected
  physicians and the executive director thereof.
    (2)  Such  special  medical  committee shall, within thirty days after
  such notification to  the  physicians  constituting  such  committee  is
  completed,  perform,  with  respect to the application for retirement of
  such member for disability, the same functions of medical examination or
  otherwise  as  are  prescribed  by  applicable  provisions  of  law  for
  performance  by  the medical board with respect to such application, and
  shall within such period adopt  by  majority  vote  and  file  with  the
  executive  director  a  report  or  certification,  as  the case may be,
  stating the conclusions and recommendations of such committee concerning
  the matters required to be reported  on  or  certified  by  the  medical
  board,  pursuant  to  such applicable provisions of law, with respect to
  such application.
    f.  The  conclusions  and  recommendations  of  the  special   medical
  committee shall supersede those of the medical board.
    g.  (1)  Each  physician  who  serves as a member of a special medical
  committee shall receive a fee for such service, to be determined by  the
  comptroller of the city.
    (2)  With  respect  to  each case in which a special medical committee
  acts, one-half of the fees of the members of  such  committee  shall  be
  paid  by  the  city.  The  other  half of such fees shall be paid by the
  bargaining representative of the member concerned in such case.
    h. (1) Within forty-five days  after  the  filing  of  the  report  or
  certification  of  the special medical committee, the board constituting
  the  head  of  the  retirement  system  shall  act  on  such  report  or
  certification as hereinafter provided in this subdivision h.
    (2)  If  the  application  is for retirement of the member pursuant to
  section 13-167 of this chapter, and if the medical  examination  by  the
  special  medical  committee  shows  that  such  member  is physically or
  mentally incapacitated for the performance  of  duty  and  ought  to  be
  retired, such committee shall so report and such board constituting such
  head  shall retire such member for ordinary disability as of the date on
  which such board constituting such head  acted  on  the  report  of  the
  medical board with respect to such application, or as of the date ninety
  days after the filing of such application for such retirement, whichever
  is earlier.


    (3)  If  the  application  is for retirement of the member pursuant to
  section 13-168 of this  chapter  and  if  the  medical  examination  and
  investigation of the special medical committee shows that such member 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 special medical committee shall so certify
  to such board  constituting  such  head  stating  the  time,  place  and
  conditions  of  such  city-service performed by such member resulting in
  such disability, and such board constituting such head shall retire such
  member for accident disability as of the date on which such board  acted
  on the report of the medical board with respect to such application.
    i.  In  any  case  where  a  request  for  review by a special medical
  committee is filed pursuant to  the  provisions  of  this  section,  the
  provisions  of  sections  13-167  and  13-168  of  this chapter shall be
  superseded by the provisions of this section  to  the  extent  that  the
  provisions of this section are inconsistent therewith.
    j.  (1)  In  any case where the provisions of this section require the
  executive director to give notice to a member,  the  executive  director
  may give such notice by delivery to such member personally or by mailing
  same  to  his  or her last known address, as shown by the records of the
  department of sanitation.
    (2) In any case where the  provisions  of  this  section  require  the
  giving of notice or the transmission of papers to any other person, such
  notice may be given or transmission effected by delivery to such person,
  by  delivery  at his or her office to any of his or her employees, or by
  mailing to the office address of such person.
    (3) In any case where  notice  is  given  by  mail  pursuant  to  this
  subdivision  j,  such  notice shall be deemed to be given on the date of
  mailing.
    k. Notwithstanding any other provision of law  to  the  contrary,  the
  board  of  trustees  may adopt rules and regulations to provide that the
  executive director,  rather  than  the  commissioner  of  health,  shall
  establish the list of the panel of medical experts, designate physicians
  as special medical committees and administer the medical review process.
  Any  rules  and regulations so adopted shall be substantially similar to
  the provisions set forth in this section.