§ 558 — Retirement for disability incurred in performance of duty

§ 558. Retirement for disability incurred in performance of duty. a.\nAfter January first, nineteen hundred eighty-five, a member who becomes\nphysically or mentally incapacitated for the performance of duty shall\nbe covered by the provisions of this section in lieu of the provisions\nof section five hundred fifty-six of this article; except, however, any\nsuch member who last entered or re-entered service prior to that date\nshall be entitled to apply for disability retirement pursuant to such\nsection and to receive the benefit so payable in lieu of the benefit\npayable pursuant to this section.\n b. Eligibility. A member shall be entitled to retirement for\ndisability incurred in the performance of duty if, at the time\napplication therefor is filed, he or she is:\n 1. Physically or mentally incapacitated for performance of duty as the\nnatural and proximate result of a disability not caused by his or her\nown willful negligence sustained in such service and while actually a\nmember of 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, 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 discontinued from service and\nprovided that the member meets the requirements of subdivision a of this\nsection and this subdivision.\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 physical or mental\nincapacitation for the performance of duty is alleged to have occurred.\n c. Application. Application for retirement for disability incurred in\nperformance of duty may be made by:\n 1. Such member, or\n 2. The head of the department in which such member is employed.\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, he or\nshe shall be so retired. Such retirement shall be effective as of a\ndate approved by the comptroller.\n e. 1. No such application shall be approved, however, unless the\nmember or some other person on his or her behalf shall have filed\nwritten notice in the office of the comptroller within ninety days after\nthe occurrence which is the basis for the disability incurred in the\nperformance of duty, setting forth:\n (a) The time, date and place of such occurrence, and\n (b) The particulars thereof, and\n (c) The nature and extent of the member's injuries, and\n (d) The alleged disability.\n 2. The notice herein required need not be given:\n (a) If notice of such occurrence 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 retirement for disability incurred in the\nperformance of duty is filed within one year after the date of the\noccurrence which forms the basis for the application, 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 3. Notwithstanding any other provision of law to the contrary, the\nprovisions of this subdivision shall apply to all occurrences before or\nafter the effective date of this section.\n f. The retirement allowance payable upon retirement for disability\nincurred in the performance of duty shall consist of a pension of\none-half of his or her final average salary plus an annuity which shall\nbe the actuarial equivalent of the member's accumulated contributions,\nif any.\n g. 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 or she may\nsimultaneously file an application for service retirement provided that\nthe member indicates on the application for service retirement that such\napplication is filed without prejudice to the application for the\nretirement for disability incurred in performance of duty.\n h. Any benefit provided pursuant to this section shall not be\nconsidered as an accidental disability benefit within the meaning of\nsection five hundred fifty-six of this article. Any benefit payable\npursuant to the workers' compensation law to a member receiving a\ndisability allowance pursuant to this section shall be in addition to\nsuch retirement for disability incurred in performance of duty\nallowance.\n i. A final determination of the comptroller that the member is not\nentitled to retirement benefits pursuant to this section shall not in\nany respect be, or constitute, a determination with regard to benefits\npayable pursuant to section two hundred seven-c of the general municipal\nlaw.\n j. 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 k. 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:\n (1) has met the criteria of subdivision j of this section and retired\non a service or disability retirement, or would have met the criteria if\nnot already retired on an accidental disability; and\n (2) has not been retired for more than twenty-five years; and\n (3) dies from a qualifying World Trade Center condition, as defined in\nsection two of this chapter, as determined by the applicable head of the\nretirement system or applicable medical board, 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\nfive hundred one of this article, shall be entitled to an accidental\ndeath benefit as provided by section five hundred nine of this article,\nhowever, for the purposes of determining the salary base upon which the\naccidental death benefit is calculated, the retiree shall be deemed to\nhave died on the date of his or her retirement. Upon the retiree's\ndeath, the eligible beneficiary shall make a written application to the\nhead of the retirement system within the time for filing an application\nfor an accidental death benefit as set forth in section five hundred\nnine of this article 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 respective 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\nthis service or disability retirement benefit (including, but not\nlimited to, post-retirement death benefits or benefits paid or payable\npursuant to the retiree's option selection), the accidental death\nbenefit payments to the eligible beneficiary will be reduced by any\namounts paid or payable to any other beneficiary.\n l. 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:\n (1) has met the criteria of subdivision j of this section; and\n (2) dies in active service 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\nmember shall be deemed to have died as a natural and proximate result of\nan accident sustained in the performance of duty and not as a result of\nwillful negligence on his or her part.\n Such member's eligible beneficiary, as set forth in section five\nhundred one of this article, shall be entitled to an accidental death\nbenefit provided he or she makes 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 five hundred nine of\nthis article.\n