N.Y. Retirement & Social Security Law § 605-b: Accidental disability retirement for New York city uniformed sanitation members

* § 605-b. Accidental disability retirement for New York city

uniformed sanitation members. a. Definitions. The following terms as

used in this section shall have the following meanings unless a

different meaning is plainly required by the context:

1. "New York city uniformed sanitation member" shall mean a member (as

defined in subdivision e of section six hundred one of this article) of

NYCERS who is a member of the uniformed force of the New York city

department of sanitation.

2. "NYCERS" shall mean the New York city employees' retirement system.

3. "Eligible prior uniformed sanitation disability retiree" shall mean

a person who retired for disability as a NYCERS member and as a member

of the uniformed force of the New York city department of sanitation

pursuant to section five hundred seven or six hundred five of this

chapter, with an effective date of retirement on or after November

first, nineteen hundred eighty-two, and prior to the effective date of

this section.

b. 1. A New York city uniformed sanitation member who, on or after the

effective date of this section, is determined by NYCERS to be physically

or mentally incapacitated for the performance of duty as the natural and

proximate result of an accident, not caused by his or her own willful

negligence, sustained in the performance of such uniformed sanitation

service while actually a member of NYCERS shall be retired for

accidental disability. Such retirement shall be effective as of the date

approved by the board of trustees of NYCERS.

2. Except as provided in paragraph one of subdivision c of this

section, applications for accidental disability retirement may be made

not later than two years after the occurrence of the accident upon which

the application is based. Such application may be made by:

(a) a New York city uniformed sanitation member;

(b) the commissioner of the New York city department of sanitation; or

(c) any person acting on behalf of and authorized by such member.

3. NYCERS shall process applications for accidental disability

retirement pursuant to this section in accordance with the applicable

statutory provisions and the rules and regulations of NYCERS pertaining

generally to the processing of disability retirement applications.

Unless inconsistent with the provisions of this section, the provisions

of section 13-169 of the administrative code of the city of New York,

relating to medical review procedures, and section 13-171 of such code,

relating to safeguards on disability retirement, shall be applicable to

accidental disability retirements pursuant to this section. The board of

trustees of NYCERS shall have the authority to adopt rules and

regulations for the purposes of implementing this section.

4. Subject to the provisions of section 13-176 of the administrative

code of the city of New York, the annual retirement allowance payable to

accidental disability retirees pursuant to this section shall be an

amount equal to three-quarters of the member's final average salary. The

retirement allowance payable pursuant to this section shall be in lieu

of any other disability retirement allowance which may otherwise be

payable by NYCERS.

c. 1. Notwithstanding the provisions of paragraphs one and two of

subdivision b of this section or any other provision of law to the

contrary, any eligible prior uniformed sanitation disability retiree (as

defined in paragraph three of subdivision a of this section) shall be

eligible to apply for accidental disability retirement pursuant to

subdivision b of this section either (a) if the member is vested and is

incapacitated as the result of a qualifying World Trade Center condition

as defined in section two of this chapter, or (b) by filing an

application with NYCERS within one year of the effective date of this

section.

2. Any eligible prior uniformed sanitation disability retiree who

files a timely application for accidental disability retirement pursuant

to paragraph one of this subdivision, and who retired either for

disability pursuant to section six hundred five of this article with

less than ten years of credited service, or for accidental disability

pursuant to section five hundred seven of this chapter, shall be granted

accidental disability retirement benefits pursuant to subdivision b of

this section, with payability of those benefits to begin on the earlier

of (a) January first, two thousand five, or (b) a date certified as the

payability date for all persons entitled to accidental disability

retirement benefits pursuant to this subdivision by the commissioner of

labor relations for the city of New York in a letter to the executive

director of NYCERS.

3. Any eligible prior uniformed sanitation disability retiree who

files a timely application for accidental disability retirement pursuant

to paragraph one of this subdivision, and who retired for disability

pursuant to section six hundred five of this article with ten or more

years of credited service, shall have that application processed in

accordance with the applicable provisions which govern the processing of

accidental disability retirement applications filed pursuant to

subdivision b of this section by or on behalf of active New York city

uniformed sanitation members of NYCERS. NYCERS shall use its best

efforts to make its determinations on such applications as soon as

practicable. Where NYCERS determines that any such prior uniformed

sanitation disability retiree is entitled to accidental disability

retirement benefits pursuant to subdivision b of this section,

payability of those benefits shall begin on the earlier of (a) January

first, two thousand five, or (b) a date certified as the payability date

for all persons entitled to accidental disability retirement benefits

pursuant to this subdivision by the commissioner of labor relations for

the city of New York in a letter to the executive director of NYCERS.

4. The accidental disability retirement allowance payable pursuant to

this section to any eligible prior uniformed sanitation disability

retiree determined by NYCERS to be entitled to such benefit shall be in

lieu of any other disability retirement benefit which such member may

have been receiving or entitled to receive from NYCERS. Any such person

who was receiving disability retirement benefits from NYCERS pursuant to

any statutory provision other than this section shall continue to

receive payment of such benefits until accidental disability retirement

benefits become payable pursuant to this section on the applicable date

specified in paragraphs two and three of this subdivision. On and after

such date he or she shall no longer be entitled to receive disability

benefits from NYCERS pursuant to such other statutory provisions.

5. Any eligible prior uniformed sanitation disability retiree who

becomes entitled to accidental disability retirement benefits pursuant

to this section shall have the same method of payment applied to such

benefits as was applicable to the disability retirement benefits he or

she was receiving from NYCERS pursuant to a statutory provision other

than this section, and such person shall not be permitted to change such

method of payment from the maximum retirement allowance to an option or

from the option selected previously to another option or to the maximum

retirement allowance.

6. Notwithstanding any other provision of law to the contrary, for the

purposes of calculating the cost-of-living adjustment which may

otherwise become payable pursuant to section 13-696 of the

administrative code of the city of New York to an eligible prior

uniformed sanitation disability retiree for any period of time after

such person has begun receiving accidental disability retirement

benefits pursuant to this section, the year of retirement of such person

shall be deemed to be the year in which he or she retired for disability

pursuant to section five hundred seven or six hundred five of this

chapter, as the case may be.

d. 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 the retirement system 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, a performance of duty disability

retirement, or was separated from service with a vested right to

deferred payability of a retirement allowance and subsequent to such

retirement or separation which 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.

(b) The head of the retirement system shall consider a

reclassification of the member's retirement or vesting 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 head of the retirement system

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

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

promulgate rules and regulations to implement the provisions of this

paragraph.

e. 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 or vestee who: (1) has met the

criteria of subdivision d of this section and retired on a service or

disability retirement, would have met the criteria if not already

retired on an accidental disability, or was separated from service with

a vested right to deferred payability of a retirement allowance; 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 or vestee 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 or vestee's part. Such retiree's or vestee'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 or vestee shall be deemed to have died on the

date of such retiree's or vestee's retirement or separation from service

with vested rights. Upon the retiree's or vestee'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 or vestee'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, or vested right to such benefit,

including any post-retirement death benefits, since the retiree's or

vestee'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), or that will be eligible under the

vested right, the accidental death benefit payments to the eligible

beneficiary will be reduced by any amounts paid or payable to any other

beneficiary.

f. 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 d of this section; (2) dies in active service or after

separating from service with a vested right to deferred payability of a

retirement allowance, but prior to the payability of that retirement

allowance; 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 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.

* NB There are 2 § 605-b's