2006 New York Code - Accidental Disability Retirement; World Trade Center Presumption.

 
    §  13-353.1  Accidental  disability  retirement;  World  Trade  Center
  presumption. 1. (a) 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.
    (b)  In  order  to  be eligible for the presumption provided for under
  paragraph (a) of this  subdivision,  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.
    (c)  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;


    (d) For purposes of this subdivision,  "participated  in  World  Trade
  Center  rescue,  recovery  or  cleanup operations" shall mean any member
  who:
    (i)  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
    (ii) worked at the Fresh Kills Land Fill in New York between September
  eleventh, two thousand one and September twelfth, two thousand two, or
    (iii) 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
    (iv)  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 section, "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.
    (e)  In  order  to be eligible for consideration for such presumption,
  such member must file a written and sworn statement with  the  New  York
  city  fire  department pension fund (NYCFDPF) 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.
    (f)  The  NYCFDPF board of trustees is hereby authorized to promulgate
  rules and regulations to implement the provisions of this paragraph.
    2. (a) 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 NYCFDPF 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
  NYCFDPF 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.
    (b) The  reclassification  provided  for  in  paragraph  (a)  of  this
  subdivision shall not be granted, unless:
    (i)  the member files a written and sworn request for reclassification
  with the NYCFDPF 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
    (ii)  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.
    (c) The NYCFDPF shall consider  a  reclassification  of  the  member's
  retirement  as  an  accidental disability retirement effective as of the
  date of such reclassification.
    (d) Such member's retirement option shall not be changed as  a  result
  of such reclassification.
    (e)  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  NYCFDPF  board  of trustees
  according to procedures developed by the NYCFDPF.
    (f) The NYCFDPF board of trustees is hereby authorized  to  promulgate
  rules and regulations to implement the provisions of this paragraph.