2006 New York Code - State Police Accidental Disability Retirement Allowance.

 
    §  363-bb. State police accidental disability retirement allowance. a.
  A member may  elect  to  receive  an  accidental  disability  retirement
  allowance  as  provided  under  this  section  in  lieu  of the benefits
  provided under section three hundred sixty-three-b of this title if,  at
  the time application therefor is filed, he or she is:
    1. Physically or mentally incapacitated for performance of duty as the
  natural and proximate result of an accident not caused by his or her own
  willful negligence sustained in such service and while actually a member
  of the New York state and local police and fire retirement system, and
    2.  Actually  in  service  upon  which his or her membership is based.
  However, in a case if a member is discontinued from  service  subsequent
  to the accident, either voluntarily or involuntarily, application may be
  made  not  later  than  two years after the member is first discontinued
  from service and provided that the  member  meets  the  requirements  of
  paragraph one of this subdivision.
    b.  Application  for an accidental disability retirement allowance for
  such a member may be made by:
    1. Such member, or
    2. The superintendent of state police or his or her designee, or
    3. A person acting on behalf of and authorized by such member.
    c. 1. After the filing of such an application  such  member  shall  be
  given  one  or  more  medical examinations. No such application shall be
  approved, however, unless the member or some other person on his or  her
  behalf  shall have filed written notice in the office of the comptroller
  within ninety days after the accident, setting forth:
    (a) The time when and the place where such accident occurred,
    (b) The particulars thereof,
    (c) The nature and extent of the member's injuries, and
    (d) His or her alleged incapacity.
    2. The notice required by this section need not be given:
    (a) If notice of such accident shall be filed in accordance  with  the
  provisions  of the workers' compensation law of any state within which a
  participating employer shall have its employees  located  or  performing
  functions and duties within the normal scope of their employment, or
    (b)  If  the application for accidental disability retirement is filed
  within one year after the date of such accident, or
    (c) If a failure to file notice has been excused for good cause  shown
  as provided by rules and regulations promulgated by the comptroller.
    d.  If  the  comptroller  determines  that the member is physically or
  mentally incapacitated for the performance  of  duty  and  ought  to  be
  retired for accidental disability, such member shall be so retired. Such
  retirement shall be effective as of a date approved by the comptroller.
    e.   Notwithstanding  any  other  provision  of  law,  the  retirement
  allowance payable upon accidental disability  retirement  shall  consist
  of:
    1.  An annuity which shall be the actuarial equivalent of the member's
  accumulated contributions, plus
    2.  A   pension   which   is   the   actuarial   equivalent   of   the
  reserve-for-increased-take-home-pay  to which he or she may be entitled,
  if any, plus
    3. A pension of three-quarters of his or her final average salary. The
  payment of such pension shall be subject to the  provisions  of  section
  three hundred sixty-four of this title.
    f.  If  the  member, at the time of filing of an application under the
  provisions of subdivision b of this section, is eligible for  a  service
  retirement benefit, then and in that event, he or she may simultaneously
  file  an  application  for  service  retirement  in  accordance with the
  provisions of section seventy of this chapter, provided that the  member
  indicates   on   the   application  for  service  retirement  that  such
  application is filed without prejudice to the applicant  for  accidental
  disability retirement.
    g.  For  purposes  of this section, the term "accident" shall have the
  same meaning and be interpreted in the  same  manner  as  such  term  is
  defined  and/or interpreted to mean in section three hundred sixty-three
  of this title, as amended.
    h. 1. (a) Notwithstanding any provisions of this  chapter  or  of  any
  general,  special  or local law, charter, administrative code 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
  subparagraph (a) 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.
    (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 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.
    (e)  In  order  to be eligible for consideration for such presumption,
  such member must file a written and sworn statement  with  the  member's
  retirement system 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  comptroller  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, a performance of duty disability retirement or a
  state police disability retirement pursuant  to  section  three  hundred
  sixty-three-b of this title and subsequent to such retirement incurred a
  disability  caused  by  any  qualifying  condition  or impairment of the
  health which the comptroller determines 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 comptroller  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 subparagraph (a) of this
  paragraph shall not be granted, unless:
    (i) the member files a written and sworn request for  reclassification
  with  the  member's  retirement system 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 comptroller 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  comptroller  according   to
  procedures developed by the comptroller.
    (f)  The  comptroller  is  hereby  authorized  to promulgate rules and
  regulations to implement the provisions of this paragraph.