§ 556 — Accidental disability retirement

§ 556. Accidental disability retirement. a. A member shall be\nentitled to an accidental disability retirement allowance if, at the\ntime 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 retirement system, and\n 2. Actually in service upon which his or her membership is based.\nHowever, in a case where a member is discontinued from service\nsubsequent to the accident, either voluntarily or involuntarily, and\nprovided that the member meets the requirements of paragraph one of this\nsubdivision, application may be made either (a) by a vested member\nincapacitated as the result of a qualifying World Trade Center condition\nas defined in section two of this chapter at any time, or (b) not later\nthan two years after the member is first discontinued from service and\nprovided that the member meets the requirements of paragraph one of this\nsubdivision.\n An application for disability retirement shall not be disapproved on\nthe basis of a deputy sheriff having failed to engage directly in\ncriminal law enforcement activities that aggregate fifty per centum of a\ndeputy sheriff's service during a period preceding the filing of the\napplication provided the failure to do so was the result of the\ndisability alleged in the application and further provided the deputy\nsheriff was certified as so engaged in criminal law enforcement\nactivities by the county sheriff at the time the accident is alleged to\nhave occurred.\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. 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, and\n (b) The particulars thereof, and\n (c) The nature and extent of the member's injuries, and\n (d) His or her alleged incapacity.\n 2. The notice herein required 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. 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 or she may be entitled,\nif any, plus\n 3. A pension of two-thirds 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 chapter.\n f. If the member, at the time of the filing of an application under\nthe provisions of subdivision b of this section, is eligible for a\nservice retirement benefit, then and in that event, he or she may\nsimultaneously file an application for service retirement in accordance\nwith the provisions of section seventy of this chapter, provided that\nthe member indicates on the application for service retirement that such\napplication is filed without prejudice to the applicant for accidental\ndisability retirement.\n g. The provisions of section three hundred sixty-four of this chapter\nshall apply.\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, 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 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 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 five hundred one of this article,\nshall be entitled to an accidental death benefit as provided by section\nfive hundred nine of this article, however, for the purposes of\ndetermining the salary base upon which the accidental death benefit is\ncalculated, the retiree shall be deemed to have died on the date of his\nor her retirement. Upon the retiree's death, the eligible beneficiary\nshall make a written application to the head of the retirement system\nwithin the time for filing an application for an accidental death\nbenefit as set forth in section five hundred nine of this article\nrequesting conversion of such retiree's service or disability retirement\nbenefit to an accidental death benefit. At the time of such conversion,\nthe eligible beneficiary shall relinquish all rights to the prospective\nbenefits payable under the service or disability retirement benefit,\nincluding any post-retirement death benefits, since the retiree's death.\nIf the eligible beneficiary is not the only beneficiary receiving or\nentitled to receive a benefit under the service or disability retirement\nbenefit (including, but not limited to, post-retirement death benefits\nor benefits 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 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\nfive hundred one of this article, shall be entitled to an accidental\ndeath benefit provided he or she makes written application to the head\nof the retirement system within the time for filing an application for\nan accidental death benefit as set forth in section five hundred nine of\nthis article.\n