New York Codes, Rules and Regulations › Title 2 - DEPARTMENT OF AUDIT AND CONTROL › Chapter VI - New York State and Local Employees' Retirement System and New York State and Local Police and Fire Retirement System › Part 382 - Pre-employment physicals for presumption provisions › Section 382.1 - Background

Current through Register Vol. 46, No. 28, July 10, 2024
The Retirement and Social Security Law contains various
				  provisions designed to assist a member or beneficiary in obtaining disability
				  retirement or death benefits by creating rebuttable presumptions that an
				  injury, illness or disease was incurred in the performance and discharge of
				  duties and, in some instances, as the natural and proximate result of an
				  accident not caused by the member's own willful negligence. Once brought into
				  play, these presumptions are rebuttable by competent evidence. Many of the
				  presumption provisions require that the member must have successfully passed a
				  physical examination upon entry into employment that failed to disclose
				  evidence of the injury, illness or disease. The requirement, which must be
				  satisfied in order to raise the presumption, is intended to disqualify those
				  individuals who clearly sustained the injury or contracted the illness or
				  disease prior to obtaining the employment upon which membership is based.
				  However, from time to time, the member and/or employer are unable to provide
				  evidence of a successful pre-employment physical despite a diligent search for
				  records and acknowledgement that an examination took place. With the passage of
				  time, records of examinations may be purged under Records Retention schedules
				  or simply lost or destroyed. In one particularly poignant example, shortly
				  after the enactment of chapters 93 and 104 of the Laws of 2005, which created
				  the disability presumption for the participants in rescue, recovery and
				  clean-up operations following the World Trade Center disaster, the Retirement
				  System was confronted with a situation wherein the medical records of the Port
				  Authority of New York "" New Jersey were destroyed in the towers collapse. To
				  avoid the untenable outcome of denying the presumption to Port Authority Police
				  Officers, the Retirement System accepted a written statement from the Port
				  Authority's Chief Medical Officer detailing the examinations, including
				  medical, given during the police officer selection process with his assurance
				  that only those who successfully complete all requirements are considered for
				  appointment as a Port Authority Police Officer. A further complicating factor
				  for the World Trade Center presumption was the realization that not every
				  otherwise eligible member was required to undergo a pre-employment physical at
				  the time of employment. It simply is not a requirement of many public
				  positions. As a result, the World Trade Center presumption was amended in 2008
				  to provide that an authorized release of all relevant medical records could
				  substitute when the member had not had an examination. Although helpful to
				  some, the amendment did not address those who had undergone examinations for
				  which the records were subsequently lost or destroyed. It seems highly unlikely
				  that the Legislature, in providing presumptions to assist members in obtaining
				  disability benefits, intended to bar those whose examination records were no
				  longer available through no fault of their own. This part is promulgated to
				  address this issue.