§ 363-BB — State police accidental disability retirement allowance

New York § 363-BB

• 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-bb. State police accidental disability retirement allowance. a.\nA member may elect to receive an accidental disability retirement\nallowance as provided under this section in lieu of the benefits\nprovided under section three hundred sixty-three-b of this title if, at\nthe time application therefor is filed, he or she 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 New York state and local police and fire retirement system, and\n 2. Actually in service upon which his or her membership is based.\nHowever, in a case if a member is discontinued from service subsequent\nto the accident, either voluntarily or involuntarily, application may be\nmade not later than two years after the member is first discontinued\nfrom service and provided that the member meets the requirements of\nparagraph one of this subdivision.\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 superintendent of state police or his or her designee, or\n 3. A person acting on behalf of and authorized by such member.\n c. 1. 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 or her\nbehalf shall have filed written notice in the office of the comptroller\nwithin ninety days after the accident, setting forth:\n (a) The time when and the place where such accident occurred,\n (b) The particulars thereof,\n (c) The nature and extent of the member's injuries, and\n (d) His or her alleged incapacity.\n 2. The notice required by this section need not be given:\n (a) 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 (b) If the application for accidental disability retirement is filed\nwithin one year after the date of such accident, or\n (c) 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. Notwithstanding any other provision of law, the retirement\nallowance payable upon accidental disability retirement shall consist\nof:\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\nreserve-for-increased-take-home-pay to which he or she may be entitled,\nif any, plus\n 3. A pension of three-quarters of his or her final average salary. The\npayment of such pension shall be subject to the provisions of section\nthree hundred sixty-four of this title.\n f. If the member, at the time of filing of an application under the\nprovisions of subdivision b of this section, is eligible for a service\nretirement benefit, then and in that event, he or she may simultaneously\nfile an application for service retirement in accordance with the\nprovisions of section seventy of this chapter, provided that the member\nindicates on the application for service retirement that such\napplication is filed without prejudice to the applicant for accidental\ndisability retirement.\n g. For purposes of this section, the term "accident" shall have the\nsame meaning and be interpreted in the same manner as such term is\ndefined and/or interpreted to mean in section three hundred sixty-three\nof this title, as amended.\n h. 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, any condition or impairment of health caused\nby a qualifying condition or impairment of health resulting in\ndisability to a member who participated in World Trade Center rescue,\nrecovery or cleanup operations for a minimum of forty hours shall be\npresumptive evidence that it was incurred in the performance and\ndischarge of duty and the natural and proximate result of an accident\nnot caused by such member's own willful negligence, unless the contrary\nbe proved by competent evidence. A member shall be eligible for the\npresumption provided for under this paragraph notwithstanding the fact\nthat the member did not participate in World Trade Center recovery and\ncleanup operations for a minimum of forty hours, provided that: (i) the\nmember participated in the rescue, recovery, or cleanup operations at\nthe World Trade Center site between September eleventh, two thousand one\nand September twelfth, two thousand one; (ii) the member sustained a\ndocumented physical injury at the World Trade Center site between\nSeptember eleventh, two thousand one and September twelfth, two thousand\none that is a qualifying condition or impairment of health resulting in\ndisability to the member that prevented the member from continuing to\nparticipate in World Trade Center rescue, recovery or cleanup operations\nfor a minimum of forty hours; and (iii) the documented physical injury\nthat resulted in a disability to the member that prevented the member\nfrom continuing to participate in World Trade Center rescue, recovery or\ncleanup operations for a minimum of forty hours is the qualifying\ncondition or impairment of health which the member seeks to be eligible\nfor the presumption provided for under this paragraph.\n (b) In order to be eligible for the presumption provided for under\nsubparagraph (a) of this paragraph, a member must have successfully\npassed a physical examination for entry into public service which failed\nto disclose evidence of the qualifying condition or impairment of health\nthat formed the basis for the disability.\n (c) For purposes of this subdivision, "qualifying condition or\nimpairment of health" shall include:\n (i) Diseases of the upper respiratory tract and mucosae, including\nconditions such as conjunctivitis, rhinitis, sinusitis, pharyngitis,\nlaryngitis, vocal cord disease, upper airway hyper-reactivity and\ntracheo-bronchitis, or a combination of such conditions;\n (ii) Diseases of the lower respiratory tract, including but not\nlimited to bronchitis, asthma, reactive airway dysfunction syndrome, and\ndifferent types of pneumonitis, such as hypersensitivity, granulomatous,\nor eosinophilic;\n (iii) Diseases of the gastroesophageal tract, including esophagitis\nand reflux disease, either acute or chronic, caused by exposure or\naggravated by exposure;\n (iv) Diseases of the psychological axis, including post-traumatic\nstress disorder, anxiety, depression, or any combination of such\nconditions;\n (v) Diseases of the skin such as contact dermatitis or burns, either\nacute or chronic in nature, infectious, irritant, allergic, idiopathic\nor non-specific reactive in nature, caused by exposure or aggravated by\nexposure; or\n (vi) New onset diseases resulting from exposure as such diseases occur\nin the future including cancer, chronic obstructive pulmonary disease,\nasbestos-related disease, heavy metal poisoning, musculoskeletal disease\nand chronic psychological disease;\n (d) For purposes of this subdivision, "participated in World Trade\nCenter rescue, recovery or cleanup operations" shall mean any member\nwho:\n (i) participated in the rescue, recovery, or clean up operations at\nthe World Trade Center site between September eleventh, two thousand one\nand September twelfth, two thousand two, or\n (ii) worked at the Fresh Kills Land Fill in New York between September\neleventh, two thousand one and September twelfth, two thousand two, or\n (iii) worked at the New York city morgue or the temporary morgue on\npier locations on the west side of Manhattan between September eleventh,\ntwo thousand one and September twelfth, two thousand two, or\n (iv) manned the barges between the west side of Manhattan and the\nFresh Kills Land Fill in New York between September eleventh, two\nthousand one and September twelfth, two thousand two. For the purposes\nof this subdivision, "World Trade Center site" shall mean anywhere below\na line starting from the Hudson River and Canal Street; east on Canal\nStreet to Pike Street; south on Pike Street to the East River; and\nextending to the lower tip of Manhattan.\n (e) In order to be eligible for consideration for such presumption,\nsuch member must file either a written and sworn statement with the\nmember's retirement system on a form provided by such system, or as\nallowed by the member's retirement system, electronically submit a\nstatement on a form provided by such system through a secure online\nportal maintained by the member's retirement system that has duly\nvalidated the member's identity, indicating the dates and locations of\nemployment. Such statement must be filed not later than four years\nfollowing the effective date of chapter one hundred four of the laws of\ntwo thousand five.\n (f) 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 for a minimum of forty\nhours, and subsequently retired on a service retirement, an ordinary\ndisability retirement, a performance of duty disability retirement or a\nstate police disability retirement pursuant to section three hundred\nsixty-three-b of this title and subsequent to such retirement incurred a\ndisability caused by any qualifying condition or impairment of the\nhealth which the comptroller determines to have been caused by such\nmember's having participated in World Trade Center rescue, recovery or\ncleanup operations for a minimum of forty hours, upon such determination\nby the comptroller it shall be presumed that such disability was\nincurred in the performance and discharge of duty as the natural and\nproximate result 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. A member shall be eligible for the\npresumption provided for under this paragraph notwithstanding the fact\nthat the member did not participate in World Trade Center rescue,\nrecovery or cleanup operations for a minimum of forty hours, provided\nthat: (i) the member participated in the rescue, recovery, or cleanup\noperations at the World Trade Center site between September eleventh,\ntwo thousand one and September twelfth, two thousand one; (ii) the\nmember sustained a documented physical injury at the World Trade Center\nsite between September eleventh, two thousand one and September twelfth,\ntwo thousand one that is a qualifying condition or impairment of health\nresulting in disability to the member that prevented the member from\ncontinuing to participate in World Trade Center rescue, recovery or\ncleanup operations for a minimum of forty hours; and (iii) the\ndocumented physical injury that resulted in a disability to the member\nthat prevented the member from continuing to participate in World Trade\nCenter rescue, recovery or cleanup operations for a minimum of forty\nhours is the qualifying condition or impairment of health which the\nmember seeks to be eligible for the presumption provided for under this\nparagraph.\n (b) The reclassification provided for in subparagraph (a) of this\nparagraph shall not be granted, unless:\n (i) the member files either a written and sworn statement with the\nmember's retirement system on a form provided by such system, or as\nallowed by the member's retirement system, electronically submits a\nstatement on a form provided by such system through a secure online\nportal maintained by the member's retirement system that has duly\nvalidated the member's identity, indicating the dates and locations of\nemployment within four years following the effective date of chapter one\nhundred four of the laws of two thousand five; and\n (ii) the member must have successfully passed a physical examination\nfor entry into public service which failed to disclose evidence of the\nqualifying condition or impairment of health that formed the basis for\nthe disability.\n (c) 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 (d) Such member's retirement option shall not be changed as a result\nof such reclassification.\n (e) 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 (f) The comptroller is hereby authorized to promulgate rules and\nregulations to implement the provisions of this paragraph.\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 retiree who: (1) has met the criteria\nof subdivision h 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 condition or\nimpairment of health, as defined in subparagraph (c) of paragraph one of\nsubdivision h of this section, that is determined by the applicable head\nof the retirement system or applicable medical board to have been caused\nby such retiree's participation in the World Trade Center rescue,\nrecovery or cleanup operations, as defined in subparagraph (d) of\nparagraph one of subdivision h of this section, then unless the contrary\nbe proven by competent evidence, such retiree shall be deemed to have\ndied as a natural and proximate result of an accident sustained in the\nperformance of duty and not as a result of willful negligence on his or\nher part. Such retiree's eligible beneficiary, as set forth in section\nthree hundred sixty-one of this title, shall be entitled to an\naccidental death benefit as provided by section three hundred sixty-one\nof this title, however, for the purposes of determining the salary base\nupon which the accidental death benefit is calculated, the retiree shall\nbe deemed to have died on the date of his or her retirement. Upon the\nretiree's death, the eligible beneficiary shall make a written\napplication to the head of the retirement system within the time for\nfiling an application for an accidental death benefit as set forth in\nsection three hundred sixty-one of this title requesting conversion of\nsuch retiree's service or disability retirement benefit to an accidental\ndeath benefit. At the time of such conversion, the eligible beneficiary\nshall relinquish all rights to the prospective benefits payable under\nthe service or disability retirement benefit, including any\npost-retirement death benefits, since the retiree's death. If the\neligible beneficiary is not the only beneficiary receiving or entitled\nto receive a benefit under the service or disability retirement benefit\n(including, but not limited to, post-retirement death benefits or\nbenefits paid or payable pursuant to the retiree's option selection),\nthe accidental death benefit payments to the eligible beneficiary will\nbe reduced by any amounts paid or payable to any other beneficiary.\n j. 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 h of this section; and (2) dies in active service from a\nqualifying condition or impairment of health, as defined in subparagraph\n(c) of paragraph one of subdivision h of this section, that is\ndetermined by the applicable head of the retirement system or applicable\nmedical board to have been caused by such member's participation in the\nWorld Trade Center rescue, recovery or cleanup operations, as defined in\nsubparagraph (d) of paragraph one of subdivision h of this section, then\nunless the contrary be proven by competent evidence, such member shall\nbe deemed to have died as a natural and proximate result of an accident\nsustained in the performance of duty and not as a result of willful\nnegligence on his or her part. Such member's eligible beneficiary, as\nset forth in section three hundred sixty-one of this title, shall be\nentitled to an accidental death benefit provided he or she makes written\napplication to the head of the retirement system within the time for\nfiling an application for an accidental death benefit as set forth in\nsection three hundred sixty-one of this title.\n