Presumptive Disability Law in New York

Presumptive Health Initiative

CODE PART:

Laws of New York
Title 8 – DEATH BENEFITS AND DISABILITY RETIREMENT
Sec. 363-a Firemen and policemen; certain disabilities.
§363-c. Retirement for disability incurred in performance of duty.
Sec. 363-d Certain impairments of health; presumption.
Sec. 363-dd Impairments of health; presumption
Sec. 363-f Firefighters; presumption in certain diseases.
Sec. 363-ff Fire fighter presumption for Parkinson’s Disease

New York Legislative Website

DESCRIPTION:Sec. 363-a.
Firemen and policemen; certain disabilities.

  1. Notwithstanding any provision of this chapter or of any general, special or local law to the contrary, any condition of impairment of health caused by diseases of the heart, resulting in disability or death to a fireman shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident, unless the contrary be proved by competent evidence.
  2. Notwithstanding any provision of this chapter or of any general, special or local law to the contrary, any condition of impairment of health caused by diseases of the heart, resulting in disability or death to a policeman,  recently employed, and who shall have sustained such disability while so employed, shall be presumptive evidence that is was incurred in the performance and discharge of duty, unless the contrary be proved by competent evidence.
  3. As used in this section, the term “fireman” and “policeman” means any member who is performing police or fire service, as the phrase police or fire service is defined in paragraphs a, b, c, d, g, and h of subdivision eleven of section three hundred two of this article, and who, prior to entry into service as a fireman or policeman, successfully passed a physical examination which failed to disclose evidence of any disease or other impairment of the heart.
  4. The provisions of this section shall remain in full force and effect to and including August thirty-first, nineteen hundred seventy-six.

* NB Expired August 31, 1976 — Kept alive per sub. a of § 480

Sec. 363-c.
Retirement for disability incurred in performance of duty.

  1. 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 three hundred sixty-three 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.
  2. 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 is:
    1. Physically or mentally incapacitated for performance of duty as the natural and proximate result of a disability not caused by his own willful negligence sustained in such service and while actually a member of the policemen’s and firemen’s retirement system, and
    2. Actually in service upon which his membership is based. However, in a case where a member is discontinued from service, either voluntarily or involuntarily, subsequent to sustaining a disability in such service, application may be made 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.
  3. 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.
  4. 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 shall be so retired. Such retirement shall be effective as of a date approved by the comptroller.
    1. 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 occurrence which is the basis for the disability incurred in the performance of duty, setting forth:
      1. The time, date and place of such occurrence, and
      2. The particulars thereof, and
      3. The nature and extent of the member’s injuries, and
      4. The alleged disability.
    2. The notice herein required need not be given:
      1. 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
      2. 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
      3. 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.
  6. The retirement allowance payable upon retirement for disability incurred in the performance of duty shall consist of a pension of one-half of his final average salary plus an annuity which shall be the actuarial equivalent of the member’s accumulated contributions, if any.
  7. 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 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.
  8. The provisions of this section and the benefits provided for therein shall not be applicable to members who are subject to the provisions of section three hundred sixty-three-b of this article.
  9. Any benefit provided pursuant to this section shall not be considered as an accidental disability benefit within the meaning of section three hundred sixty-four 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.
  10. 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-a or section two hundred seven-c of the general municipal law.

Sec. 363-d.
Certain impairments of health; presumption. Notwithstanding any other provisions of this chapter to the contrary, any (i) melanoma or (ii) condition of cancer affecting the lymphatic, digestive, hematological, urinary, neurological, breast, reproductive, endocrine/thyroid or prostate systems, resulting in total or partial disability or death to a paid firefighter, who successfully passed a physical examination on entry into firefighter service, which examination failed to reveal any evidence of such melanoma or condition, shall be presumptive evidence that, unless the contrary be proven by competent evidence, such disability or death (a) was caused by the natural and proximate result of an accident, not caused by such firefighter’s own willful negligence, and (b) was sustained in the performance and discharge of duty. The provisions of this section shall remain in full force and effect to and including the thirtieth day of June, two thousand five.

* NB Expired July 1, 2005

Sec. 363-dd.
Impairments of health; presumption. Notwithstanding any provision of this chapter or of any general, special or local law to the contrary, any police officer or firefighter who is covered by the provisions of section three hundred sixty-three of this title and who contracts HIV, tuberculosis or hepatitis after contact with members of the public (where there may have been an exposure to a bodily fluid) will be presumed to have contracted such disease in the performance or discharge of his or her duties as the natural and proximate result of an accident and to be disabled from the performance of his or her duties unless the contrary be proven by competent evidence.

Sec. 363-f.

Firefighters; presumption in certain diseases. Notwithstanding any provision of this chapter or of any general, special or local law to the contrary, and for the purposes of this chapter, any condition of impairment of health caused by diseases of the lung, resulting in total or partial disability or death to a uniformed member of a paid fire department, where such member successfully passed a physical examination on entry into such service or subsequent thereto, which examination failed to reveal any evidence of such conditions, shall be presumptive evidence that such disability or death (1) was caused by the natural and proximate result of an accident, not caused by such firefighter’s own negligence and (2) was incurred in the performance and discharge of duty, unless the contrary be proven by competent evidence. The provisions of this section shall remain in full force and effect to and including the thirtieth day of June, two thousand eight.

* NB Expired July 1, 2008

§ 363-ff. Firefighter certain impairments of health; presumption.

Notwithstanding any other provisions of this chapter to the contrary, any condition of impairment of health caused by Parkinson’s Disease, resulting in total or partial disability or death to a paid firefighter, who successfully passed a physical examination on entry into firefighter service, which examination failed to reveal any evidence of such condition, shall be presumptive evidence that, unless the contrary be proven by competent evidence, such disability or death (a) was caused by the natural and proximate result of an accident, not caused by such fire fighter’s own willful negligence, and (b) was sustained in the performance and discharge of duty.