2006 New York Code - Accidental Disability Retirement For New York City Uniformed Sanitation Members.

 
    * §   605-b.  Accidental  disability  retirement  for  New  York  city
  uniformed sanitation members. a. Definitions.  The  following  terms  as
  used  in  this  section  shall  have  the  following  meanings  unless a
  different meaning is plainly required by the context:
    1. "New York city uniformed sanitation member" shall mean a member (as
  defined in subdivision e of section six hundred one of this article)  of
  NYCERS  who  is  a  member  of  the uniformed force of the New York city
  department of sanitation.
    2. "NYCERS" shall mean the New York city employees' retirement system.
    3. "Eligible prior uniformed sanitation disability retiree" shall mean
  a person who retired for disability as a NYCERS member and as  a  member
  of  the  uniformed  force  of the New York city department of sanitation
  pursuant to section five hundred seven  or  six  hundred  five  of  this
  chapter,  with  an  effective  date  of  retirement on or after November
  first, nineteen hundred eighty-two, and prior to the effective  date  of
  this section.
    b. 1. A New York city uniformed sanitation member who, on or after the
  effective date of this section, is determined by NYCERS to be physically
  or mentally incapacitated for the performance of duty as the natural and
  proximate  result  of  an accident, not caused by his or her own willful
  negligence, sustained in the performance of  such  uniformed  sanitation
  service  while  actually  a  member  of  NYCERS  shall  be  retired  for
  accidental disability. Such retirement shall be effective as of the date
  approved by the board of trustees of NYCERS.
    2. Except as provided in  paragraph  one  of  subdivision  c  of  this
  section,  applications  for accidental disability retirement may be made
  not later than two years after the occurrence of the accident upon which
  the application is based. Such application may be made by:
    (a) a New York city uniformed sanitation member;
    (b) the commissioner of the New York city department of sanitation; or
    (c) any person acting on behalf of and authorized by such member.
    3.  NYCERS  shall  process  applications  for  accidental   disability
  retirement  pursuant  to  this section in accordance with the applicable
  statutory provisions and the rules and regulations of NYCERS  pertaining
  generally  to  the  processing  of  disability  retirement applications.
  Unless inconsistent with the provisions of this section, the  provisions
  of  section  13-169  of the administrative code of the city of New York,
  relating to medical review procedures, and section 13-171 of such  code,
  relating  to safeguards on disability retirement, shall be applicable to
  accidental disability retirements pursuant to this section. The board of
  trustees  of  NYCERS  shall  have  the  authority  to  adopt  rules  and
  regulations for the purposes of implementing this section.
    4.  Subject  to the provisions of section 13-176 of the administrative
  code of the city of New York, the annual retirement allowance payable to
  accidental disability retirees pursuant to  this  section  shall  be  an
  amount equal to three-quarters of the member's final average salary. The
  retirement  allowance  payable pursuant to this section shall be in lieu
  of any other disability retirement  allowance  which  may  otherwise  be
  payable by NYCERS.
    c.  1.  Notwithstanding  the  provisions  of paragraphs one and two of
  subdivision b of this section or any  other  provision  of  law  to  the
  contrary, any eligible prior uniformed sanitation disability retiree (as
  defined  in  paragraph  three of subdivision a of this section) shall be
  eligible to apply  for  accidental  disability  retirement  pursuant  to
  subdivision  b  of  this  section  by  filing an application with NYCERS
  within one year of the effective date of this section.
    2. Any eligible prior  uniformed  sanitation  disability  retiree  who
  files a timely application for accidental disability retirement pursuant
  to  paragraph  one  of  this  subdivision,  and  who  retired either for
  disability pursuant to section six hundred five  of  this  article  with
  less  than  ten  years of credited service, or for accidental disability
  pursuant to section five hundred seven of this chapter, shall be granted
  accidental  disability  retirement benefits pursuant to subdivision b of
  this section, with payability of those benefits to begin on the  earlier
  of  (a) January first, two thousand five, or (b) a date certified as the
  payability date  for  all  persons  entitled  to  accidental  disability
  retirement  benefits pursuant to this subdivision by the commissioner of
  labor relations for the city of New York in a letter  to  the  executive
  director of NYCERS.
    3.  Any  eligible  prior  uniformed  sanitation disability retiree who
  files a timely application for accidental disability retirement pursuant
  to paragraph one of this subdivision, and  who  retired  for  disability
  pursuant  to  section  six hundred five of this article with ten or more
  years of credited service, shall  have  that  application  processed  in
  accordance with the applicable provisions which govern the processing of
  accidental   disability   retirement   applications  filed  pursuant  to
  subdivision b of this section by or on behalf of active  New  York  city
  uniformed  sanitation  members  of  NYCERS.  NYCERS  shall  use its best
  efforts to make its determinations  on  such  applications  as  soon  as
  practicable.  Where  NYCERS  determines  that  any  such prior uniformed
  sanitation disability  retiree  is  entitled  to  accidental  disability
  retirement   benefits   pursuant  to  subdivision  b  of  this  section,
  payability of those benefits shall begin on the earlier of  (a)  January
  first, two thousand five, or (b) a date certified as the payability date
  for  all  persons  entitled to accidental disability retirement benefits
  pursuant to this subdivision by the commissioner of labor relations  for
  the city of New York in a letter to the executive director of NYCERS.
    4.  The accidental disability retirement allowance payable pursuant to
  this section to  any  eligible  prior  uniformed  sanitation  disability
  retiree  determined by NYCERS to be entitled to such benefit shall be in
  lieu of any other disability retirement benefit which  such  member  may
  have  been receiving or entitled to receive from NYCERS. Any such person
  who was receiving disability retirement benefits from NYCERS pursuant to
  any statutory provision  other  than  this  section  shall  continue  to
  receive  payment of such benefits until accidental disability retirement
  benefits become payable pursuant to this section on the applicable  date
  specified  in paragraphs two and three of this subdivision. On and after
  such date he or she shall no longer be entitled  to  receive  disability
  benefits from NYCERS pursuant to such other statutory provisions.
    5.  Any  eligible  prior  uniformed  sanitation disability retiree who
  becomes entitled to accidental disability retirement  benefits  pursuant
  to  this  section  shall have the same method of payment applied to such
  benefits as was applicable to the disability retirement benefits  he  or
  she  was  receiving  from NYCERS pursuant to a statutory provision other
  than this section, and such person shall not be permitted to change such
  method of payment from the maximum retirement allowance to an option  or
  from  the option selected previously to another option or to the maximum
  retirement allowance.
    6. Notwithstanding any other provision of law to the contrary, for the
  purposes  of  calculating  the  cost-of-living  adjustment   which   may
  otherwise   become   payable   pursuant   to   section   13-696  of  the
  administrative code of the  city  of  New  York  to  an  eligible  prior
  uniformed  sanitation  disability  retiree  for any period of time after
  such  person  has  begun  receiving  accidental  disability   retirement
  benefits pursuant to this section, the year of retirement of such person
  shall be deemed to be the year in which he or she retired for disability
  pursuant  to  section  five  hundred  seven  or six hundred five of this
  chapter, as the case may be.
    d.  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  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.
    (f) The NYCERS 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 the 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
  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  clean  up
  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  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
    (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 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.
    (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  NYCERS  board  of  trustees
  according to procedures developed by the NYCERS board of trustees.
    (f)  The  NYCERS  board of trustees is hereby authorized to promulgate
  rules and regulations to implement the provisions of this paragraph.
    * NB Expires June 30, 2007. There are 2 § 605-b's.