NY Ret & SS L § 363-BB (2021)
2021 New York Laws RSS - Retirement and Social Security Article 8 - New York State and Local Police and Fire Retirement System Title 8 - Death Benefits and Disability Retirement 363-BB - State Police Accidental Disability Retirement Allowance.

§  363-bb. State police accidental disability retirement allowance. a. A member may  elect  to  receive  an  accidental  disability  retirement allowance  as  provided  under  this  section  in  lieu  of the benefits provided under section three hundred sixty-three-b of this title if,  at the time application therefor is filed, he or she is:   1. Physically or mentally incapacitated for performance of duty as the natural and proximate result of an accident not caused by his or her own willful negligence sustained in such service and while actually a member of the New York state and local police and fire retirement system, and   2.  Actually  in  service  upon  which his or her membership is based. However, in a case if a member is discontinued from  service  subsequent to the accident, either voluntarily or involuntarily, application may be made  not  later  than  two years after the member is first discontinued from service and provided that the  member  meets  the  requirements  of paragraph one of this subdivision.   b.  Application  for an accidental disability retirement allowance for such a member may be made by:   1. Such member, or   2. The superintendent of state police or his or her designee, or   3. A person acting on behalf of and authorized by such member.   c. 1. After the filing of such an application  such  member  shall  be given  one  or  more  medical examinations. No such application shall be approved, however, unless the member or some other person on his or  her behalf  shall have filed written notice in the office of the comptroller within ninety days after the accident, setting forth:  (a) The time when and the place where such accident occurred,  (b) The particulars thereof,  (c) The nature and extent of the member's injuries, and  (d) His or her alleged incapacity.   2. The notice required by this section need not be given:  (a) If notice of such accident shall be filed in accordance  with  the provisions  of the workers' compensation law of any state within which a participating employer shall have its employees  located  or  performing functions and duties within the normal scope of their employment, or  (b)  If  the application for accidental disability retirement is filed within one year after the date of such accident, or  (c) If a failure to file notice has been excused for good cause  shown as provided by rules and regulations promulgated by the comptroller.   d.  If  the  comptroller  determines  that the member is physically or mentally incapacitated for the performance  of  duty  and  ought  to  be retired for accidental disability, such member shall be so retired. Such retirement shall be effective as of a date approved by the comptroller.   e.   Notwithstanding  any  other  provision  of  law,  the  retirement allowance payable upon accidental disability  retirement  shall  consist of:   1.  An annuity which shall be the actuarial equivalent of the member's accumulated contributions, plus   2.  A   pension   which   is   the   actuarial   equivalent   of   the reserve-for-increased-take-home-pay  to which he or she may be entitled, if any, plus   3. A pension of three-quarters of his or her final average salary. The payment of such pension shall be subject to the  provisions  of  section three hundred sixty-four of this title.   f.  If  the  member, at the time of filing of an application under the provisions of subdivision b of this section, is eligible for  a  service retirement benefit, then and in that event, he or she may simultaneously file  an  application  for  service  retirement  in  accordance with the provisions of section seventy of this chapter, provided that the  member  indicates   on   the   application  for  service  retirement  that  such application is filed without prejudice to the applicant  for  accidental disability retirement.   g.  For  purposes  of this section, the term "accident" shall have the same meaning and be interpreted in the  same  manner  as  such  term  is defined  and/or interpreted to mean in section three hundred sixty-three of this title, as amended.   h. 1. (a) Notwithstanding any provisions of this  chapter  or  of  any general,  special  or local law, charter, administrative code or rule or regulation to the contrary, any condition or impairment of health caused by  a  qualifying  condition  or  impairment  of  health  resulting   in disability  to  a  member who participated in World Trade Center rescue, recovery or cleanup operations for a minimum of  forty  hours  shall  be presumptive  evidence  that  it  was  incurred  in  the  performance and discharge of duty and the natural and proximate result  of  an  accident not  caused by such member's own willful negligence, unless the contrary be proved by competent evidence. A member  shall  be  eligible  for  the presumption  provided  for under this paragraph notwithstanding the fact that the member did not participate in World Trade Center  recovery  and cleanup  operations for a minimum of forty hours, provided that: (i) the member participated in the rescue, recovery, or  cleanup  operations  at the World Trade Center site between September eleventh, two thousand one and  September  twelfth,  two  thousand one; (ii) the member sustained a documented physical injury  at  the  World  Trade  Center  site  between September eleventh, two thousand one and September twelfth, two thousand one  that is a qualifying condition or impairment of health resulting in disability to the member that prevented the member  from  continuing  to participate in World Trade Center rescue, recovery or cleanup operations for  a  minimum of forty hours; and (iii) the documented physical injury that resulted in a disability to the member that  prevented  the  member from continuing to participate in World Trade Center rescue, recovery or cleanup  operations  for  a  minimum  of  forty  hours is the qualifying condition or impairment of health which the member seeks to be  eligible for the presumption provided for under this paragraph.  (b)  In  order  to  be eligible for the presumption provided for under subparagraph (a) of this paragraph,  a  member  must  have  successfully passed a physical examination for entry into public service which failed to disclose evidence of the qualifying condition or impairment of health that formed the basis for the disability.  (c)  For  purposes  of  this  subdivision,  "qualifying  condition  or impairment of health" shall include:  (i) Diseases of the upper respiratory  tract  and  mucosae,  including conditions  such  as  conjunctivitis,  rhinitis, sinusitis, pharyngitis, laryngitis,  vocal  cord  disease,  upper  airway  hyper-reactivity  and tracheo-bronchitis, or a combination of such conditions;  (ii)  Diseases  of  the  lower  respiratory  tract,  including but not limited to bronchitis, asthma, reactive airway dysfunction syndrome, and different types of pneumonitis, such as hypersensitivity, granulomatous, or eosinophilic;  (iii) Diseases of the gastroesophageal  tract,  including  esophagitis and  reflux  disease,  either  acute  or  chronic, caused by exposure or aggravated by exposure;  (iv) Diseases of  the  psychological  axis,  including  post-traumatic stress  disorder,  anxiety,  depression,  or  any  combination  of  such conditions;  (v) Diseases of the skin such as contact dermatitis or  burns,  either acute  or  chronic in nature, infectious, irritant, allergic, idiopathic  or non-specific reactive in nature, caused by exposure or aggravated  by exposure; or  (vi) New onset diseases resulting from exposure as such diseases occur in  the  future including cancer, chronic obstructive pulmonary disease, asbestos-related disease, heavy metal poisoning, musculoskeletal disease and chronic psychological disease;  (d) For purposes of this subdivision,  "participated  in  World  Trade Center  rescue,  recovery  or  cleanup operations" shall mean any member who:  (i) participated in the rescue, recovery, or clean  up  operations  at the World Trade Center site between September eleventh, two thousand one and September twelfth, two thousand two, or  (ii) worked at the Fresh Kills Land Fill in New York between September eleventh, two thousand one and September twelfth, two thousand two, or  (iii)  worked  at  the New York city morgue or the temporary morgue on pier locations on the west side of Manhattan between September eleventh, two thousand one and September twelfth, two thousand two, or  (iv) manned the barges between the west  side  of  Manhattan  and  the Fresh  Kills  Land  Fill  in  New  York  between September eleventh, two thousand one and September twelfth, two thousand two. For  the  purposes of this subdivision, "World Trade Center site" shall mean anywhere below a  line  starting  from the Hudson River and Canal Street; east on Canal Street to Pike Street; south on Pike  Street  to  the  East  River;  and extending to the lower tip of Manhattan.  (e)  In  order  to be eligible for consideration for such presumption, such member must file either a written  and  sworn  statement  with  the member's  retirement  system  on  a  form provided by such system, or as allowed by the  member's  retirement  system,  electronically  submit  a statement  on  a  form  provided  by such system through a secure online portal maintained by  the  member's  retirement  system  that  has  duly validated  the  member's identity, indicating the dates and locations of employment. Such statement must be  filed  not  later  than  four  years following  the effective date of chapter one hundred four of the laws of two thousand five.  (f) The comptroller is  hereby  authorized  to  promulgate  rules  and regulations to implement the provisions of this paragraph.   2.  (a)  Notwithstanding  the  provisions  of  this  chapter or of any general, special or local law, charter, administrative code or  rule  or regulation  to the contrary, if a member who participated in World Trade Center rescue, recovery or cleanup operations for  a  minimum  of  forty hours,  and  subsequently  retired  on a service retirement, an ordinary disability retirement, a performance of duty disability retirement or  a state  police  disability  retirement  pursuant to section three hundred sixty-three-b of this title and subsequent to such retirement incurred a disability caused by any  qualifying  condition  or  impairment  of  the health  which  the  comptroller  determines  to have been caused by such member's having participated in World Trade Center rescue,  recovery  or cleanup operations for a minimum of forty hours, upon such determination by  the  comptroller  it  shall  be  presumed  that  such disability was incurred in the performance and discharge of duty  as  the  natural  and proximate  result of an accident not caused by such member's own willful negligence, and that the member would have been physically  or  mentally incapacitated  for the performance and discharge of duty of the position from which he or she retired had the  condition  been  known  and  fully developed at the time of the member's retirement, unless the contrary is proven  by  competent  evidence.  A  member  shall  be  eligible for the presumption provided for under this paragraph notwithstanding  the  fact that  the  member  did  not  participate  in  World Trade Center rescue,  recovery or cleanup operations for a minimum of  forty  hours,  provided that:  (i)  the  member participated in the rescue, recovery, or cleanup operations at the World Trade Center site  between  September  eleventh, two  thousand  one  and  September  twelfth,  two thousand one; (ii) the member sustained a documented physical injury at the World Trade  Center site between September eleventh, two thousand one and September twelfth, two  thousand one that is a qualifying condition or impairment of health resulting in disability to the member that  prevented  the  member  from continuing  to  participate  in  World  Trade Center rescue, recovery or cleanup  operations  for  a  minimum  of  forty  hours;  and  (iii)  the documented  physical  injury that resulted in a disability to the member that prevented the member from continuing to participate in World  Trade Center  rescue,  recovery  or  cleanup operations for a minimum of forty hours is the qualifying condition or  impairment  of  health  which  the member  seeks to be eligible for the presumption provided for under this paragraph.  (b) The reclassification provided for  in  subparagraph  (a)  of  this paragraph shall not be granted, unless:  (i)  the  member  files  either a written and sworn statement with the member's retirement system on a form provided  by  such  system,  or  as allowed  by  the  member's  retirement  system, electronically submits a statement on a form provided by such  system  through  a  secure  online portal  maintained  by  the  member's  retirement  system  that has duly validated the member's identity, indicating the dates and  locations  of employment within four years following the effective date of chapter one hundred four of the laws of two thousand five; and  (ii)  the  member must have successfully passed a physical examination for entry into public service which failed to disclose evidence  of  the qualifying  condition  or impairment of health that formed the basis for the disability.  (c) The comptroller shall consider a reclassification of the  member's retirement  as  an  accidental disability retirement effective as of the date of such reclassification.  (d) Such member's retirement option shall not be changed as  a  result of such reclassification.  (e)  The  member's  former  employer  at  the  time  of  the  member's retirement shall have  an  opportunity  to  be  heard  on  the  member's application   for  reclassification  by  the  comptroller  according  to procedures developed by the comptroller.  (f) The comptroller is  hereby  authorized  to  promulgate  rules  and regulations to implement the provisions of this paragraph.   i.  Notwithstanding  any  other  provision  of  this chapter or of any general, special or local law, charter, administrative code or  rule  or regulation  to  the contrary, if a retiree who: (1) has met the criteria of subdivision h of this section and retired on a service or  disability retirement,  or would have met the criteria if not already retired on an accidental disability; and (2)  has  not  been  retired  for  more  than twenty-five   years;  and  (3)  dies  from  a  qualifying  condition  or impairment of health, as defined in subparagraph (c) of paragraph one of subdivision h of this section, that is determined by the applicable head of the retirement system or applicable medical board to have been caused by such retiree's  participation  in  the  World  Trade  Center  rescue, recovery  or  cleanup  operations,  as  defined  in  subparagraph (d) of paragraph one of subdivision h of this section, then unless the contrary be proven by competent evidence, such retiree shall be  deemed  to  have died  as  a natural and proximate result of an accident sustained in the performance of duty and not as a result of willful negligence on his  or her  part.  Such retiree's eligible beneficiary, as set forth in section  three  hundred  sixty-one  of  this  title,  shall  be  entitled  to  an accidental  death benefit as provided by section three hundred sixty-one of this title, however, for the purposes of determining the salary  base upon which the accidental death benefit is calculated, the retiree shall be  deemed  to  have died on the date of his or her retirement. Upon the retiree's  death,  the  eligible  beneficiary  shall  make   a   written application  to  the  head  of the retirement system within the time for filing an application for an accidental death benefit as  set  forth  in section  three  hundred sixty-one of this title requesting conversion of such retiree's service or disability retirement benefit to an accidental death benefit. At the time of such conversion, the eligible  beneficiary shall  relinquish  all  rights to the prospective benefits payable under the  service   or   disability   retirement   benefit,   including   any post-retirement  death  benefits,  since  the  retiree's  death.  If the eligible beneficiary is not the only beneficiary receiving  or  entitled to  receive a benefit under the service or disability retirement benefit (including, but  not  limited  to,  post-retirement  death  benefits  or benefits  paid  or  payable pursuant to the retiree's option selection), the accidental death benefit payments to the eligible  beneficiary  will be reduced by any amounts paid or payable to any other beneficiary.   j.  Notwithstanding  any  other  provision  of  this chapter or of any general, special or local law, charter, administrative code or  rule  or regulation to the contrary, if a member who: (1) has met the criteria of subdivision  h  of  this  section; and (2) dies in active service from a qualifying condition or impairment of health, as defined in subparagraph (c) of  paragraph  one  of  subdivision  h  of  this  section,  that  is determined by the applicable head of the retirement system or applicable medical  board to have been caused by such member's participation in the World Trade Center rescue, recovery or cleanup operations, as defined in subparagraph (d) of paragraph one of subdivision h of this section, then unless the contrary be proven by competent evidence, such  member  shall be  deemed to have died as a natural and proximate result of an accident sustained in the performance of duty and not  as  a  result  of  willful negligence  on  his  or her part. Such member's eligible beneficiary, as set forth in section three hundred sixty-one of  this  title,  shall  be entitled to an accidental death benefit provided he or she makes written application  to  the  head  of the retirement system within the time for filing an application for an accidental death benefit as  set  forth  in section three hundred sixty-one of this title.