§ 363-E — Disability retirement allowance for members of the division of law enforcement in the department of environmental conservation and the re...

§ 363-e. Disability retirement allowance for members of the division\nof law enforcement in the department of environmental conservation and\nthe regional state park police.\n a. Every non-seasonally appointed sworn member or officer of the\ndivision of law enforcement in the department of environmental\nconservation and the regional state park police who becomes physically\nor mentally incapacitated for the performance of duty shall be covered\nby the provisions of this section in lieu of the provisions of section\nthree hundred sixty-two of this article; except, however, any such\nmember or officer who last entered or reentered service in the\ndepartment of environmental conservation or state park police, as the\ncase may be, prior to September first, nineteen hundred ninety-seven,\nshall be entitled to apply for disability retirement pursuant to such\nsections and to receive the benefit so payable in lieu of the benefit\npayable pursuant to this section.\n b. Eligibility. A member or officer shall be entitled to a disability\nretirement allowance under this section if, at the time application\ntherefor is filed, he/she is:\n 1. Under age sixty, and\n 2. (a) Physically or mentally incapacitated for performance of duty as\nthe natural and proximate result of a disability not caused by his/her\nown willful negligence sustained in such service and while actually a\nmember of the police and fire retirement system, or\n (b) Physically or mentally incapacitated for performance of duty as a\nresult of a disability that was not sustained in such service, and has\nat least five years of total service credit in the division, and\n 3. Actually in service upon which their membership is based, or, have\nbeen discontinued from service, either voluntarily or involuntarily for\nnot more than ninety days provided the member was disabled prior to such\ndiscontinuance, or is a vested member incapacitated as a result of a\nqualifying World Trade Center condition as defined in section two of\nthis chapter. However, in a case where a member is discontinued from\nservice, either voluntarily or involuntarily, subsequent to sustaining a\ndisability in such service, application may be made not later than two\nyears after the member is discontinued from service and provided that\nthe member meets the requirements of this subdivision and subdivision a\nof this section.\n c. Application. Application for a disability retirement allowance\nunder this section may be made by:\n 1. Such member, or\n 2. The commissioner of the department of environmental conservation or\nthe office of parks, recreation and historical preservation, as the case\nmay be or his designee, or\n 3. A person acting on behalf of and authorized by such member.\n d. Verification of disability. After the filing of such an\napplication, such member shall be given one or more medical\nexaminations. If the comptroller determines that the member is\nphysically or mentally incapacitated for the performance of duty\npursuant to subdivision b of this section and ought to be retired,\nhe/she shall be so retired. Such retirement shall be effective as of a\ndate approved by the comptroller.\n e. Upon retirement pursuant to this section one of the following\nretirement allowances shall be payable:\n 1. If a member has completed twenty-five or more years of creditable\nservice and is eligible for service retirement his retirement allowance\nshall be equal to that which he would have received in the case of\nservice retirement.\n 2. If a member is not eligible for a service retirement as specified\nin paragraph one of this subdivision, his retirement allowance shall\nconsist of:\n (a) An annuity which shall be the actuarial equivalent of the member's\naccumulated contributions attributable to service rendered prior to\nJanuary first, nineteen hundred eighty-seven as provided pursuant to\nparagraph one of subdivision d of section three hundred eighty-three-a,\nor paragraph one of subdivision f of section three hundred\neighty-three-b of this article, as the case may be, plus\n (b) A pension which together with such annuity provides an allowance\nequal to one-half of his final average salary.\n f. If the member, at the time of the filing of an application under\nthe provisions of subdivision c of this section, is eligible for a\nservice retirement benefit, then and in that event, he may\nsimultaneously file an application for service retirement in accordance\nwith the provisions of section three hundred eighty-three-a or three\nhundred eighty-three-b of this article, as the case may be, provided\nthat the member indicates on the application for service retirement that\nsuch application is filed without prejudice to the application for the\ndisability retirement allowance under this section.\n g. Any benefit provided pursuant to this section shall not be\nconsidered as an accidental disability benefit within the meaning of\nsection three hundred sixty-four of this article. Any benefits payable\npursuant to the workers' compensation law to a member or officer\nreceiving a disability allowance pursuant to this section shall be in\naddition to such disability allowance under this section, provided,\nhowever, that in the event the disabled retired member is also entitled\nto disability benefits under the federal social security act, and the\nsum of the disability retirement allowance, supplemental retirement\nallowance, workers' compensation benefit, and the primary social\nsecurity disability insurance benefit exceeds final salary, as defined\nin subdivision e of section four hundred two of this article, that\nportion of the pension which increases the combined benefit above final\nsalary shall be suspended for the duration of the period that the\ncombined benefit would so exceed final salary.\n