N.Y. Retirement & Social Security Law § 363: Accidental disability retirement

§ 363. Accidental disability retirement. a. A member shall be entitled

to an accidental disability retirement allowance if, at the time

application therefor is filed, he 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 police and fire retirement system, and

2. Actually in service upon which his membership is based. However, in

a case where a member is discontinued from service subsequent to the

accident, either voluntarily or involuntarily, and provided that the

member meets the requirements of paragraph one of this subdivision,

application may be made, either (a) by a vested member incapacitated as

the result of a qualifying World Trade Center condition as defined in

section two of this chapter at any time, or (b) not later than two years

after the member is first discontinued from service. Provided further

that in the case of an application filed for accidental disability

benefits pursuant to section three hundred sixty-three-d of this title,

the requirements for filing for such benefits shall be five years.

b. Application for an accidental disability retirement allowance for

such a member may be made by:

1. Such member, or

2. The head of the department in which such member is employed, or

3. Some person acting on behalf of and authorized by such member.

c. (a) 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 behalf

shall have filed written notice in the office of the comptroller within

ninety days after the accident, setting forth:

1. The time when and the place where such accident occurred, and

2. The particulars thereof, and

3. The nature and extent of the member's injuries, and

4. His alleged incapacity.

(b) The notice herein required need not be given:

1. 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

2. If the application for accidental disability retirement is filed

within one year after the date of such accident, or

3. 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. 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

reserved-for-increased-take-home-pay to which he may be entitled, if

any, plus

3. A pension of three-quarters of his final average salary. The

payment of such pension shall be subject to the provisions of section

three hundred sixty-four of this article.

f. If the member, at the time of the filing of an application under

the provisions of subdivision b hereof, is eligible for a service

retirement benefit, then and in that event, he 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 application for accidental disability

retirement.

g. 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, if any condition or impairment of health is

caused by a qualifying World Trade Center condition as defined in

section two of this chapter, it 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.

(b) 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, as defined in section two

of this chapter, and subsequently retired on a service retirement, an

ordinary disability retirement or a performance of duty disability

retirement and subsequent to such retirement is determined by the

comptroller to have a qualifying World Trade Center condition, as

defined in section two of this chapter, 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.

(b) The comptroller shall consider a reclassification of the member's

retirement as an accidental disability retirement effective as of the

date of such reclassification.

(c) Such member's retirement option shall not be changed as a result

of such reclassification.

(d) 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.

(e) The comptroller is hereby authorized to promulgate rules and

regulations to implement the provisions of this paragraph.

h. 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 g 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

thirty-five years; and (3) dies from a qualifying World Trade Center

condition, as defined in section two of this chapter, as determined by

the applicable head of the retirement system or applicable medical

board, 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 such retiree's 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

such retiree's 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.

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 member who: (1) has met the criteria of

subdivision g of this section; and (2) dies in active service from a

qualifying World Trade Center condition, as defined in section two of

this chapter, as 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 section two of this chapter, 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.