N.Y. Retirement & Social Security Law § 605: Disability retirement

§ 605. Disability retirement. a. Application for a disability

retirement allowance for a member may be made by:

1. Such member, or

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

b. At the time of the filing of an application pursuant to this

section, the member must:

1. Have at least ten years of total service credit, and

2. The application must be filed 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) within

three months from the last date the member was being paid on the payroll

or, (c) in the case of a member who was placed on a leave of absence for

medical reasons without pay, either voluntarily or involuntarily, at the

time he ceased being paid, application may be made not later than twelve

months after the date the employee receives notice that his employment

status has been terminated. In the case of a member of the New York

state teachers' retirement system, the application must be filed not

later than twelve months after the last date the member was being paid

on the payroll or, where the member was placed on leave of absence for

medical reasons without pay, either voluntarily or involuntarily at the

time the member ceased being paid, not later than twelve months after

the date the member receives notice that the member's employment status

has been terminated.

3. Provided, however, if the retirement system determines that such

member was physically or mentally incapacitated for performance of

gainful employment as the natural and proximate result of an accident

not caused by his own willful negligence sustained in the performance of

his duties in active service while actually a member of the retirement

system the requirement that the member should have ten years of credited

service shall be inapplicable.

c. If the retirement system determines that the member is physically

or mentally incapacitated for the performance of gainful employment, and

that he was so incapacitated at the time he ceased his performance of

duties and ought to be retired for disability, he shall be so retired.

Each retirement system shall be entitled to adopt appropriate procedures

for making the foregoing determination, including but not limited to the

conducting of medical examinations, if any, for the purpose of

determining initial entitlement of an applicant for disability

retirement or to continued entitlement to a disability retirement

allowance. Such retirement shall be effective as of a date approved by

the head of the retirement system.

d. Upon retirement for disability one of the following retirement

allowances shall be payable:

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

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

education retirement system or the New York city teachers' retirement

system, if the member has attained age sixty when such retirement

becomes effective, his retirement allowance shall be equal to that which

he would receive in the case of service retirement at normal retirement

age based on his credited service but in no event shall such retirement

allowance exceed the amount he would receive pursuant to paragraph two

of this subdivision.

2. In the case of a member of a retirement system other than the New

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

education retirement system or the New York city teachers' retirement

system, if the member has not attained age sixty when such retirement

becomes effective, his retirement allowance shall consist of a

retirement allowance which shall equal one-sixtieth of his final average

salary multiplied by the number of years of his credited service, which

formula shall be used only if the retirement allowance so computed

exceeds one-third of his final average salary. If the retirement

allowance so computed shall amount to one-third or less of the member's

final average salary, his retirement allowance shall be computed upon

the basis of the total service which he would have rendered if he

continued in service until he attained age sixty provided that the

resulting retirement allowance computed by resort to this formula shall

not exceed one-third of the member's final average salary.

3. In the case of a member of the New York city employees' retirement

system, the New York city board of education retirement system or the

New York city teachers' retirement system, his retirement allowance

shall be equal to the greater of:

(i) one-third of his final average salary; or

(ii) one-sixtieth of his final average salary multiplied by the number

of years of his credited service; provided, however, that where such

member is otherwise eligible to retire for service, and the retirement

allowance which he would receive in the case of service retirement is

larger than the retirement allowance he would otherwise receive under

this subparagraph or subparagraph (i) of this paragraph, his disability

retirement allowance pursuant to this paragraph shall be equal to the

retirement allowance he would receive if he had retired for service.

4. 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.

5. Notwithstanding the provisions of this subdivision, the minimum

benefit payable to a member of the New York state and local employees'

retirement system who has been determined to be physically or mentally

incapacitated for performance of gainful employment as the natural and

proximate result of an accident not caused by willful negligence

sustained in the performance of duties in active service while actually

a member of the retirement system shall be a pension of one-third of

such member's final average salary.

e. The board of trustees of the New York city employees' retirement

system may, consistent with the provisions of this section, adopt rules

and regulations establishing a procedure for the medical review of

determinations made by such retirement system on applications for

disability retirement filed pursuant to this section. Any medical review

procedure adopted pursuant to this subdivision shall be substantially

similar to the medical review procedure provided in section 13-169 of

the administrative code of the city of New York, and shall provide that

where a request for medical review is filed on behalf of an applicant

for disability retirement, such request for medical review shall be void

and of no effect unless such applicant for disability retirement, or a

person acting on his or her behalf in accordance with such rules and

regulations, executes a waiver providing that he or she waives any and

all rights which he or she might otherwise have to seek or obtain any

other disposition of such application for disability retirement by court

or administrative proceedings or otherwise.

f. If the retirement system determines that such member was physically

or mentally incapacitated for performance of gainful employment as the

natural and proximate result of an accident not caused by his own

willful negligence sustained in the performance of his duties in active

service while actually a member of the retirement system, and the member

is a teacher not within the coverage of section three of the workers'

compensation law or an employee in group twenty of subdivision one of

such section, the retirement allowance shall equal two-thirds of such

member's final average salary.

g. Any payments made to a member who the retirement system has

determined was physically or mentally incapacitated for performance of

gainful employment as the natural and proximate result of an accident

not caused by his own willful negligence sustained in the performance of

his duties in active service while actually a member of the retirement

system, and who is not eligible to receive workers' compensation

benefits by operation of group twenty or group twenty-two of section

three of the workers' compensation law, shall be deemed to be a payment

made in lieu of a workers' compensation benefit.

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, 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 head of each retirement system is hereby authorized to

promulgate rules and regulations 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 or a state police disability retirement pursuant to section

three hundred sixty-three-b of this title and subsequent to such

retirement is determined by the head of the retirement system to have a

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

this chapter, upon such determination by the head of the retirement

system 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.

(2) 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 or a performance of duty disability retirement and subsequent

to such retirement incurred a disability caused by any qualifying

condition or impairment of the health which the applicable board of

trustees determines, after a determination of disability by the

applicable medical board, 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

applicable board of trustees, 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.

(3) 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 head of the retirement system 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 head of the retirement system

according to procedures developed by the head of the retirement system.

(f) The head of the retirement system is hereby authorized to

promulgate rules and regulations for their respective retirement systems

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

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 six hundred one of this article,

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

six hundred seven 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 six hundred seven 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.

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 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

six 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 six hundred seven of

this article.