558 - Retirement for disability incurred in performance of duty.

§  558.  Retirement for disability incurred in performance of duty. a.  After January first, nineteen hundred eighty-five, a member who  becomes  physically  or  mentally incapacitated for the performance of duty shall  be covered by the provisions of this section in lieu of  the  provisions  of  section five hundred fifty-six of this article; except, however, any  such member who last entered or re-entered service prior  to  that  date  shall  be  entitled  to apply for disability retirement pursuant to such  section and to receive the benefit so payable in  lieu  of  the  benefit  payable pursuant to this section.    b.   Eligibility.  A  member  shall  be  entitled  to  retirement  for  disability  incurred  in  the  performance  of  duty  if,  at  the  time  application therefor is filed, he or she is:    1. Physically or mentally incapacitated for performance of duty as the  natural  and  proximate  result of a disability not caused by his or her  own willful negligence sustained in such service and  while  actually  a  member of the retirement system, and    2.  Actually  in  service  upon  which his or her membership is based.  However, in a case where a member  is  discontinued  from  service,  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  discontinued  from service and  provided that the member meets the requirements of subdivision a of this  section and this subdivision.    c. Application. Application for retirement for disability incurred  in  performance of duty may be made by:    1. Such member, or    2. The head of the department in which such member is employed.    d.   Verification   of   disability.  After  the  filing  of  such  an  application,  such  member  shall  be  given   one   or   more   medical  examinations.   If   the  comptroller  determines  that  the  member  is  physically  or  mentally  incapacitated  for  the  performance  of  duty  pursuant to subdivision b of this section and ought to be retired, he or  she  shall  be  so retired.   Such retirement shall be effective as of a  date approved by the comptroller.    e. 1. No such application  shall  be  approved,  however,  unless  the  member  or  some  other  person  on  his  or her behalf shall have filed  written notice in the office of the comptroller within ninety days after  the occurrence which is the basis for the  disability  incurred  in  the  performance of duty, setting forth:    (a) The time, date and place of such occurrence, and    (b) The particulars thereof, and    (c) The nature and extent of the member's injuries, and    (d) The alleged disability.    2. The notice herein required need not be given:    (a) If notice of such occurrence 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    (b)  If  the application for retirement for disability incurred in the  performance of duty is filed within one  year  after  the  date  of  the  occurrence which forms the basis for the application, or    (c)  If a failure to file notice has been excused for good cause shown  as provided by rules and regulations promulgated by the comptroller.    3. Notwithstanding any other provision of law  to  the  contrary,  the  provisions  of this subdivision shall apply to all occurrences before or  after the effective date of this section.f. The retirement allowance payable  upon  retirement  for  disability  incurred  in  the  performance  of  duty  shall  consist of a pension of  one-half of his or her final average salary plus an annuity which  shall  be  the  actuarial equivalent of the member's accumulated contributions,  if any.    g.  If  the  member, at the time of the filing of an application under  the provisions of subdivision c of  this  section,  is  eligible  for  a  service  retirement  benefit,  then  and  in  that  event, he or she may  simultaneously file an application for service retirement provided  that  the member indicates on the application for service retirement that such  application  is  filed  without  prejudice  to  the  application for the  retirement for disability incurred in performance of duty.    h. Any  benefit  provided  pursuant  to  this  section  shall  not  be  considered  as  an  accidental  disability benefit within the meaning of  section five hundred fifty-six of  this  article.  Any  benefit  payable  pursuant  to  the  workers'  compensation  law  to  a member receiving a  disability allowance pursuant to this section shall be  in  addition  to  such   retirement   for  disability  incurred  in  performance  of  duty  allowance.    i. A final determination of the comptroller that  the  member  is  not  entitled  to  retirement  benefits pursuant to this section shall not in  any respect be, or constitute, a determination with regard  to  benefits  payable pursuant to section two hundred seven-c of the general municipal  law.    j.  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'sapplication  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.    k. 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 j 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 twenty-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 his  or  her  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 his  or  her  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  respective  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  this  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.    l.  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 j 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, 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.