2006 New York Code - Accidental Disability Benefits.

 
    * § 507. Accidental disability benefits. a. A member in active service
  who  is  not  eligible  for a normal service retirement benefit shall be
  eligible for the accidental disability benefit described in  subdivision
  c  of this section if such member has been determined to be eligible for
  primary social security disability benefits  and  was  disabled  as  the
  natural  and  proximate  result  of an accident sustained in such active
  service  and  not  caused  by  such  member's  own  willful  negligence;
  provided,  however,  that  no  member  of  the  New York state teachers'
  retirement system, the New York city employees' retirement  system,  the
  New  York city board of education retirement system or the New York city
  teachers' retirement system who is  otherwise  eligible  for  accidental
  disability  benefits  pursuant  to  this  section  shall be deemed to be
  ineligible for such benefits because  such  member  is  eligible  for  a
  normal service retirement benefit.
    b.  A  police/fire  member in active service who is not eligible for a
  normal service retirement benefit shall be eligible for  the  accidental
  disability benefit either as provided in subdivision a or if such member
  is  physically  or mentally incapacitated for performance of duty as the
  natural and proximate result of an accident  sustained  in  such  active
  service and not caused by such member's own willful negligence.
    c.  In  the case of a member of a retirement system other than the New
  York state teachers' retirement system, the  New  York  city  employees'
  retirement  system,  the  New  York  city  board of education retirement
  system or the New York city teachers' retirement system, the  accidental
  disability  benefit hereunder shall be a pension equal to two percent of
  final average salary times years of credited service which  such  member
  would have attained if employment had continued until such member's full
  escalation  date,  not  in  excess  of  the  maximum  years  of  service
  creditable for the normal service retirement  benefit,  less  (i)  fifty
  percent  of  the  primary social security disability benefit, if any, as
  provided in section five hundred eleven of this article,  and  (ii)  one
  hundred percent of any workers' compensation benefits payable.
    In  the  case  of  a member of the New York state teachers' retirement
  system, the New York city employees' retirement  system,  the  New  York
  city board of education retirement system or the New York city teachers'
  retirement  system, the accidental disability benefit hereunder shall be
  a pension equal to sixty percent of final average salary, less (i) fifty
  percent of the primary social security disability benefit,  if  any,  as
  provided  in  section  five hundred eleven of this article, and (ii) one
  hundred percent of any workers' compensation benefits  payable.  In  the
  event  a  disability  retiree from any retirement system is not eligible
  for the primary social security disability benefit and continues  to  be
  eligible  for  disability  benefits  hereunder,  such disability benefit
  shall be reduced by one-half of such retiree's primary  social  security
  retirement  benefit,  commencing at age sixty-two, in the same manner as
  provided for service retirement  benefits  under  section  five  hundred
  eleven of this article.
    d.  If a member shall cease to be eligible for primary social security
  benefits before attaining age  sixty-five,  or,  if  receipt  of  social
  security  benefits is not a condition for disability benefits hereunder,
  shall engage in such employment or business  activity  as  would  render
  such  member  ineligible for social security disability benefits (had he
  or  she  otherwise  been  eligible),  benefits  hereunder  shall  cease.
  Provided, however, if such member is otherwise eligible, the state civil
  service  department  or appropriate municipal commission shall place the
  name of such  person,  as  a  preferred  eligible,  on  the  appropriate
  eligible  lists  prepared  by  it for positions for which such person is
  stated to be qualified in a salary grade not exceeding that  from  which
  such  person  retired.  In  such  event,  disability  benefits  shall be
  continued for such member until such member first  shall  be  offered  a
  position in public service at such salary grade.
    e.  A  member  shall  not be eligible to apply for disability benefits
  under section five hundred six or this section unless such member shall,
  at the time of application, sign a waiver  prepared  by  the  retirement
  system  and  approved by the administrative head of such system pursuant
  to which such member agrees to  waive  the  benefits  of  any  statutory
  presumption  relating  to  the  cause  of  disability or eligibility for
  disability benefits, and a determination  of  eligibility  for  benefits
  hereunder shall be made without regard to any such statutory provision.
    f.  If  disability benefits hereunder are conditioned upon eligibility
  for receipt of primary social  security  disability  benefits,  benefits
  hereunder  shall  commence  at  the  time  that  primary social security
  disability benefits commence. If disability benefits hereunder  are  not
  conditioned  upon  eligibility  for  receipt  of primary social security
  disability benefits, benefits hereunder shall commence as of the date of
  disability retirement.
    g. 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 or applicable retirement system board of  trustees
  are  hereby  authorized  to  promulgate  rules and regulations for their
  respective retirement  systems  to  implement  the  provisions  of  this
  paragraph.
    2.  (a)(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 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.
    (2)  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  the  health which the applicable 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  upon such determination by the applicable 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.
    (3)  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 or applicable retirement system 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.
    (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  or  applicable
  retirement system board of trustees according to procedures developed by
  the comptroller or applicable retirement system board of trustees.
    (f) The comptroller or applicable retirement system board of  trustees
  is  hereby  authorized  to  promulgate  rules  and regulations for their
  respective retirement  systems  to  implement  the  provisions  of  this
  paragraph.
    * NB Expires June 30, 2007