2006 New York Code - Accidental Disability Retirement.

 
    §  63. Accidental disability retirement. a. A member shall be entitled
  to an  accidental  disability  retirement  allowance  if,  at  the  time
  application therefor is filed, he is:
    1. Physically or mentally incapacitated for performance of duty as the
  natural  and  proximate  result  of  an  accident  not caused by his own
  willful negligence sustained in such service and while actually a member
  of the retirement system, and
    2. Actually in service upon which his membership is based.
    However, in a  case  where  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 head of the department in which such member is employed, or
    3. Some person acting on behalf of and authorized by such member.
    c.  (a)  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 behalf
  shall have filed written notice in the office of the comptroller  within
  ninety days after the accident, setting forth:
    1. The time when and the place where such accident occurred, and
    2. The particulars thereof, and
    3. The nature and extent of the member's injuries, and
    4. His alleged incapacity.
    (b) The notice herein required need not be given:
    1.  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
    2. If the application for accidental disability  retirement  is  filed
  within one year after the date of such accident, or
    3.  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.  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 may be entitled, if any,
  plus
    3.  A  pension  of  three-quarters  of  his  final average salary. The
  payment of such pension shall be subject to the  provisions  of  section
  sixty-four of this article.
    f.  If  the  member, at the time of the filing of an application under
  the provisions of subdivision  b  hereof,  is  eligible  for  a  service
  retirement  benefit,  then and in that event, he 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  application   for   accidental   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 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 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.