§ 363 — Accidental disability retirement

New York § 363

• Jurisdiction: New York
• Law RSS: Retirement & Social Security
• Title 8: Death Benefits and Disability Retirement
• Art. 8: New York State and Local Police and Fire Retirement System

Text

§ 363. Accidental disability retirement. a. A member shall be entitled\nto an accidental disability retirement allowance if, at the time\napplication therefor is filed, he is:\n 1. Physically or mentally incapacitated for performance of duty as the\nnatural and proximate result of an accident not caused by his or her own\nwillful negligence sustained in such service and while actually a member\nof the police and fire retirement system, and\n 2. Actually in service upon which his membership is based. However, in\na case where a member is discontinued from service subsequent to the\naccident, either voluntarily or involuntarily, and provided that the\nmember meets the requirements of paragraph one of this subdivision,\napplication may be made, either (a) by a vested member incapacitated as\nthe result of a qualifying World Trade Center condition as defined in\nsection two of this chapter at any time, or (b) not later than two years\nafter the member is first discontinued from service. Provided further\nthat in the case of an application filed for accidental disability\nbenefits pursuant to section three hundred sixty-three-d of this title,\nthe requirements for filing for such benefits shall be five years.\n b. Application for an accidental disability retirement allowance for\nsuch a member may be made by:\n 1. Such member, or\n 2. The head of the department in which such member is employed, or\n 3. Some person acting on behalf of and authorized by such member.\n c. (a) After the filing of such an application such member shall be\ngiven one or more medical examinations. No such application shall be\napproved, however, unless the member or some other person on his behalf\nshall have filed written notice in the office of the comptroller within\nninety days after the accident, setting forth:\n 1. The time when and the place where such accident occurred, and\n 2. The particulars thereof, and\n 3. The nature and extent of the member's injuries, and\n 4. His alleged incapacity.\n (b) The notice herein required need not be given:\n 1. If notice of such accident shall be filed in accordance with the\nprovisions of the workers' compensation law of any state within which a\nparticipating employer shall have its employees located or performing\nfunctions and duties within the normal scope of their employment, or\n 2. If the application for accidental disability retirement is filed\nwithin one year after the date of such accident, or\n 3. If a failure to file notice has been excused for good cause shown\nas provided by rules and regulations promulgated by the comptroller.\n d. If the comptroller determines that the member is physically or\nmentally incapacitated for the performance of duty and ought to be\nretired for accidental disability, such member shall be so retired. Such\nretirement shall be effective as of a date approved by the comptroller.\n e. The retirement allowance payable upon accidental disability\nretirement shall consist of:\n 1. An annuity which shall be the actuarial equivalent of the member's\naccumulated contributions, plus\n 2. A pension which is the actuarial equivalent of the\nreserved-for-increased-take-home-pay to which he may be entitled, if\nany, plus\n 3. A pension of three-quarters of his final average salary. The\npayment of such pension shall be subject to the provisions of section\nthree hundred sixty-four of this article.\n f. If the member, at the time of the filing of an application under\nthe provisions of subdivision b hereof, is eligible for a service\nretirement benefit, then and in that event, he may simultaneously file\nan application for service retirement in accordance with the provisions\nof section seventy of this chapter, provided that the member indicates\non the application for service retirement that such application is filed\nwithout prejudice to the application for accidental disability\nretirement.\n g. 1. (a) Notwithstanding any provisions of this chapter or of any\ngeneral, special or local law, charter, administrative code or rule or\nregulation to the contrary, if any condition or impairment of health is\ncaused by a qualifying World Trade Center condition as defined in\nsection two of this chapter, it shall be presumptive evidence that it\nwas incurred in the performance and discharge of duty and the natural\nand proximate result of an accident not caused by such member's own\nwillful negligence, unless the contrary be proved by competent evidence.\n (b) The comptroller is hereby authorized to promulgate rules and\nregulations to implement the provisions of this paragraph.\n 2. (a) Notwithstanding the provisions of this chapter or of any\ngeneral, special or local law, charter, administrative code or rule or\nregulation to the contrary, if a member who participated in World Trade\nCenter rescue, recovery or cleanup operations, as defined in section two\nof this chapter, and subsequently retired on a service retirement, an\nordinary disability retirement or a performance of duty disability\nretirement and subsequent to such retirement is determined by the\ncomptroller to have a qualifying World Trade Center condition, as\ndefined in section two of this chapter, upon such determination by the\ncomptroller it shall be presumed that such disability was incurred in\nthe performance and discharge of duty as the natural and proximate\nresult of an accident not caused by such member's own willful\nnegligence, and that the member would have been physically or mentally\nincapacitated for the performance and discharge of duty of the position\nfrom which he or she retired had the condition been known and fully\ndeveloped at the time of the member's retirement, unless the contrary is\nproven by competent evidence.\n (b) The comptroller shall consider a reclassification of the member's\nretirement as an accidental disability retirement effective as of the\ndate of such reclassification.\n (c) Such member's retirement option shall not be changed as a result\nof such reclassification.\n (d) The member's former employer at the time of the member's\nretirement shall have an opportunity to be heard on the member's\napplication for reclassification by the comptroller according to\nprocedures developed by the comptroller.\n (e) The comptroller is hereby authorized to promulgate rules and\nregulations to implement the provisions of this paragraph.\n h. Notwithstanding any other provision of this chapter or of any\ngeneral, special or local law, charter, administrative code or rule or\nregulation to the contrary, if a retiree who: (1) has met the criteria\nof subdivision g of this section and retired on a service or disability\nretirement, or would have met the criteria if not already retired on an\naccidental disability; and (2) has not been retired for more than\ntwenty-five years; and (3) dies from a qualifying World Trade Center\ncondition, as defined in section two of this chapter, as determined by\nthe applicable head of the retirement system or applicable medical\nboard, then unless the contrary be proven by competent evidence, such\nretiree shall be deemed to have died as a natural and proximate result\nof an accident sustained in the performance of duty and not as a result\nof willful negligence on his or her part. Such retiree's eligible\nbeneficiary, as set forth in section three hundred sixty-one of this\ntitle, shall be entitled to an accidental death benefit as provided by\nsection three hundred sixty-one of this title, however, for the purposes\nof determining the salary base upon which the accidental death benefit\nis calculated, the retiree shall be deemed to have died on the date of\nhis or her retirement. Upon the retiree's death, the eligible\nbeneficiary shall make a written application to the head of the\nretirement system within the time for filing an application for an\naccidental death benefit as set forth in section three hundred sixty-one\nof this title requesting conversion of such retiree's service or\ndisability retirement benefit to an accidental death benefit. At the\ntime of such conversion, the eligible beneficiary shall relinquish all\nrights to the prospective benefits payable under the service or\ndisability retirement benefit, including any post-retirement death\nbenefits, since the retiree's death. If the eligible beneficiary is not\nthe only beneficiary receiving or entitled to receive a benefit under\nthe service or disability retirement benefit (including, but not limited\nto, post-retirement death benefits or benefits paid or payable pursuant\nto the retiree's option selection), the accidental death benefit\npayments to the eligible beneficiary will be reduced by any amounts paid\nor payable to any other beneficiary.\n i. Notwithstanding any other provision of this chapter or of any\ngeneral, special or local law, charter, administrative code or rule or\nregulation to the contrary, if a member who: (1) has met the criteria of\nsubdivision g of this section; and (2) dies in active service from a\nqualifying World Trade Center condition, as defined in section two of\nthis chapter, as determined by the applicable head of the retirement\nsystem or applicable medical board to have been caused by such member's\nparticipation in the World Trade Center rescue, recovery or cleanup\noperations, as defined in section two of this chapter, then unless the\ncontrary be proven by competent evidence, such member shall be deemed to\nhave died as a natural and proximate result of an accident sustained in\nthe performance of duty and not as a result of willful negligence on his\nor her part. Such member's eligible beneficiary, as set forth in section\nthree hundred sixty-one of this title, shall be entitled to an\naccidental death benefit provided he or she makes written application to\nthe head of the retirement system within the time for filing an\napplication for an accidental death benefit as set forth in section\nthree hundred sixty-one of this title.\n