N.Y. Retirement & Social Security Law § 507: Accidental disability benefits

§ 507. Accidental disability benefits. a. A member in active service,

or a vested member incapacitated as the result of a qualifying World

Trade Center condition as defined in section two of this chapter, who is

not eligible for a normal service retirement benefit shall be eligible

for the accidental disability benefit described in subdivision c of this

section if such member has been determined to be eligible for primary

social security disability benefits and was disabled as the natural and

proximate result of an accident sustained in such active service and not

caused by such member's own willful negligence; provided, however, that

no member of the New York state teachers' retirement system, the New

York city employees' retirement system, the New York city board of

education retirement system, the New York city teachers' retirement

system or the New York state and local employees' retirement system who

is otherwise eligible for accidental disability benefits pursuant to

this section shall be deemed to be ineligible for such benefits because

such member is eligible for a normal service retirement benefit.

b. A police/fire member in active service, a New York city uniformed

correction/sanitation revised plan member in active service or an

investigator revised plan member in active service, or a vested member

incapacitated as the result of a qualifying World Trade Center condition

as defined in section two of this chapter, who is not eligible for a

normal service retirement benefit shall be eligible for the accidental

disability benefit either as provided in subdivision a of this section

or if such member is physically or mentally incapacitated for

performance of duty as the natural and proximate result of an accident

sustained in such active service and not caused by such member's own

willful negligence.

c. 1. In the case of a member of a retirement system other than the

New York state and local employees' retirement system, the New York

state teachers' retirement system, the New York city employees'

retirement system, the New York city board of education retirement

system or the New York city teachers' retirement system, or in the case

of a member of the New York city employees' retirement system who is a

New York city uniformed correction/sanitation revised plan member or an

investigator revised plan member, the accidental disability benefit

hereunder shall be a pension equal to two percent of final average

salary times years of credited service which such member would have

attained if employment had continued until such member's full escalation

date, not in excess of the maximum years of service creditable for the

normal service retirement benefit, less (i) fifty percent of the primary

social security disability benefit, if any, as provided in section five

hundred eleven of this article, and (ii) one hundred percent of any

workers' compensation benefits payable. The provisions of this paragraph

shall not apply to New York city enhanced plan members.

2. In the case of a member of the New York state and local employees'

retirement system, the New York state teachers' retirement system, the

New York city employees' retirement system (other than a New York city

uniformed correction/sanitation revised plan member or an investigator

revised plan member), the New York city board of education retirement

system or the New York city teachers' retirement system, the accidental

disability benefit hereunder shall be a pension equal to sixty percent

of final average salary, less (i) fifty percent of the primary social

security disability benefit, if any, as provided in section five hundred

eleven of this article, and (ii) one hundred percent of any workers'

compensation benefits payable. In the event a disability retiree from

any retirement system is not eligible for the primary social security

disability benefit and continues to be eligible for disability benefits

hereunder, such disability benefit shall be reduced by one-half of such

retiree's primary social security retirement benefit, commencing at age

sixty-two, in the same manner as provided for service retirement

benefits under section five hundred eleven of this article.

3. In the case of a New York city enhanced plan member, the accidental

disability benefit hereunder shall be a pension equal to seventy-five

percent of final average salary, less one hundred percent of any

workers' compensation benefits payable.

d. If a member shall cease to be eligible for primary social security

benefits before attaining age sixty-five, or, if receipt of social

security benefits is not a condition for disability benefits hereunder,

shall engage in such employment or business activity as would render

such member ineligible for social security disability benefits (had he

or she otherwise been eligible), benefits hereunder shall cease.

Provided, however, if such member is otherwise eligible, the state civil

service department or appropriate municipal commission shall place the

name of such person, as a preferred eligible, on the appropriate

eligible lists prepared by it for positions for which such person is

stated to be qualified in a salary grade not exceeding that from which

such person retired. In such event, disability benefits shall be

continued for such member until such member first shall be offered a

position in public service at such salary grade.

e. A member, except a New York city enhanced plan member, shall not be

eligible to apply for disability benefits under section five hundred six

or this section unless such member shall, at the time of application,

sign a waiver prepared by the retirement system and approved by the

administrative head of such system pursuant to which such member agrees

to waive the benefits of any statutory presumption relating to the cause

of disability or eligibility for disability benefits, and a

determination of eligibility for benefits hereunder shall be made

without regard to any such statutory provision.

f. If disability benefits hereunder are conditioned upon eligibility

for receipt of primary social security disability benefits, benefits

hereunder shall commence at the time that primary social security

disability benefits commence. If disability benefits hereunder are not

conditioned upon eligibility for receipt of primary social security

disability benefits, benefits hereunder shall commence as of the date of

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 or applicable retirement system board of trustees

are hereby authorized to promulgate rules and regulations for their

respective retirement systems to implement the provisions of this

paragraph.

2. (a)(1) 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 or applicable retirement system board of trustees 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 or applicable retirement system board of trustees

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 or applicable

retirement system board of trustees according to procedures developed by

the comptroller or applicable retirement system board of trustees.

(e) The comptroller or applicable retirement system board of trustees

is hereby authorized to promulgate rules and regulations for their

respective retirement systems 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 five hundred one of this article,

shall be entitled to an accidental death benefit as provided by section

five hundred nine of this article, 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 five hundred nine of this article

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.

h-1. Notwithstanding any other law, rule or regulation to the

contrary, any member who had an active membership in the New York state

and local employees' retirement system or the New York state teachers'

retirement system, when such member participated in World Trade Center

rescue, recovery, or cleanup operations, as such participation is

defined in section two of this chapter, who incurred a qualifying World

Trade Center condition, as defined in section two of this chapter, that

is determined to have been incurred in the performance and discharge of

duty and is the natural and proximate result of an accident not caused

by such member's own willful negligence, shall be paid a performance of

duty disability retirement allowance equal to three-quarters of final

average salary. The payment of such pension shall be subject to the

provisions of section sixty-four of this chapter.

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

five hundred one of this article, 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 five hundred nine of

this article.

j. Notwithstanding any inconsistent provision of this chapter or any

law, any condition of impairment of health caused by diseases of the

lung, resulting in disability or death to a member of the New York city

fire department pension fund who is a New York city enhanced plan

member, who successfully passed a physical examination on entry into

service as a firefighter, which examination failed to disclose evidence

of any disease or other impairment of the lung, shall be presumptive

evidence that it was incurred in the performance and discharge of duty,

unless the contrary be proved by competent evidence.