S T A T E O F N E W Y O R K
________________________________________________________________________
7906
2009-2010 Regular Sessions
I N A S S E M B L Y
April 28, 2009
___________
Introduced by M. of A. ABBATE -- read once and referred to the Committee
on Governmental Employees
AN ACT to amend the retirement and social security law, in relation to
disability benefits for firefighters employed by the division of mili-
tary and naval affairs
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The retirement and social security law is amended by adding
two new sections 63-g and 63-h to read as follows:
S 63-G. PERFORMANCE OF DUTY DISABILITY RETIREMENT. A. ANY MEMBER OF
THE RETIREMENT SYSTEM EMPLOYED BY THE DIVISION OF MILITARY AND NAVAL
AFFAIRS SHALL BE ELIGIBLE TO RETIRE PURSUANT TO THE PROVISIONS OF THIS
SECTION IF HE OR SHE IS AN AIRPORT FIREFIGHTER APPRENTICE, AIRPORT FIRE-
FIGHTER I, AIRPORT FIREFIGHTER II, AIRPORT FIREFIGHTER III OR TRAINING
AND SAFETY OFFICER.
B. NOTWITHSTANDING ANY PROVISION OF THIS CHAPTER OR OF ANY GENERAL OR
SPECIAL LAW TO THE CONTRARY, ANY MEMBER WHO BECOMES PHYSICALLY OR
MENTALLY INCAPACITATED AS THE RESULT OF A DISABILITY FROM ANY CONDITION
OF IMPAIRMENT OF HEALTH CAUSED BY: (1) DISEASES OF THE HEART; OR (2) ANY
(I) MELANOMA OR (II) CONDITION OF CANCER AFFECTING THE LYMPHATIC, DIGES-
TIVE, HEMATOLOGICAL, URINARY, NEUROLOGICAL, BREAST, REPRODUCTIVE OR
PROSTATE SYSTEMS, WHO IS PRESENTLY EMPLOYED AND WHO SHALL HAVE SUSTAINED
SUCH DISABILITY WHILE SO EMPLOYED AND WHILE ACTUALLY A MEMBER OF THE
RETIREMENT SYSTEM, WHO SUCCESSFULLY PASSED A PHYSICAL EXAMINATION ON
ENTRY INTO SERVICE AS AN AIRPORT FIREFIGHTER APPRENTICE, AIRPORT FIRE-
FIGHTER I, AIRPORT FIREFIGHTER II, AIRPORT FIREFIGHTER III OR TRAINING
AND SAFETY OFFICER, WHICH EXAMINATION FAILED TO DISCLOSE EVIDENCE OF ANY
DISEASE OR OTHER IMPAIRMENT OF THE HEART OR SUCH MELANOMA OR CONDITION,
SHALL BE PRESUMPTIVE EVIDENCE THAT SUCH DISABILITY OR DEATH (A) WAS
CAUSED BY THE NATURAL AND PROXIMATE RESULT OF AN ACCIDENT, NOT CAUSED BY
SUCH FIREFIGHTER'S OWN NEGLIGENCE AND (B) WAS INCURRED IN THE PERFORM-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08791-02-9
A. 7906 2
ANCE AND DISCHARGE OF DUTY, UNLESS THE CONTRARY BE PROVEN BY COMPETENT
EVIDENCE AND SHALL BE PAID A PERFORMANCE OF DUTY DISABILITY RETIREMENT
BENEFIT PAYABLE PURSUANT TO THIS SECTION.
C. APPLICATION FOR A PERFORMANCE OF DUTY DISABILITY RETIREMENT ALLOW-
ANCE FOR SUCH A MEMBER MAY BE MADE BY:
1. SUCH MEMBER;
2. THE HEAD OF THE DEPARTMENT IN WHICH SUCH MEMBER IS EMPLOYED; OR
3. SOME PERSON ACTING ON BEHALF OF AND AUTHORIZED BY SUCH MEMBER.
D. AFTER THE FILING OF SUCH AN APPLICATION SUCH MEMBER SHALL BE GIVEN
ONE OR MORE MEDICAL EXAMINATIONS.
E. IF THE COMPTROLLER DETERMINES THAT THE MEMBER IS PHYSICALLY OR
MENTALLY INCAPACITATED FOR THE PERFORMANCE OF DUTY AND OUGHT TO BE
RETIRED FOR PERFORMANCE OF DUTY DISABILITY, SUCH MEMBER SHALL BE SO
RETIRED. SUCH RETIREMENT SHALL BE EFFECTIVE AS OF A DATE APPROVED BY
THE COMPTROLLER.
F. THE RETIREMENT ALLOWANCE PAYABLE UPON RETIREMENT FOR PERFORMANCE OF
DUTY DISABILITY SHALL CONSIST OF A PENSION OF ONE-HALF OF HIS OR HER
FINAL AVERAGE SALARY PLUS AN ANNUITY WHICH SHALL BE THE ACTUARIAL EQUIV-
ALENT OF SUCH 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, SUCH MEMBER MAY
SIMULTANEOUSLY FILE AN APPLICATION FOR SERVICE RETIREMENT IN ACCORDANCE
WITH THE PROVISIONS OF SECTION SEVENTY OF THIS ARTICLE, PROVIDED THAT
THE MEMBER INDICATES ON THE APPLICATION FOR SERVICE RETIREMENT THAT SUCH
APPLICATION IS FILED WITHOUT PREJUDICE TO THE APPLICATION FOR PERFORM-
ANCE OF DUTY DISABILITY RETIREMENT.
H. ANY BENEFIT PROVIDED PURSUANT TO THIS SECTION SHALL NOT BE CONSID-
ERED AS AN ACCIDENTAL DISABILITY BENEFIT WITHIN THE MEANING OF SECTION
SIXTY-FOUR OF THIS TITLE. 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.
S 63-H. CERTAIN IMPAIRMENTS OF HEALTH; PRESUMPTION. A. ANY MEMBER OF
THE RETIREMENT SYSTEM EMPLOYED BY THE DIVISION OF MILITARY AND NAVAL
AFFAIRS SHALL BE ELIGIBLE TO RETIRE PURSUANT TO THE PROVISIONS OF THIS
SECTION IF HE OR SHE IS AN AIRPORT FIREFIGHTER APPRENTICE, AIRPORT FIRE-
FIGHTER I, AIRPORT FIREFIGHTER II, AIRPORT FIREFIGHTER III OR TRAINING
AND SAFETY OFFICER.
B. NOTWITHSTANDING ANY PROVISION OF THIS CHAPTER OR OF ANY GENERAL OR
SPECIAL LAW TO THE CONTRARY, ANY CONDITION OF IMPAIRMENT OF HEALTH
CAUSED BY: (1) DISEASES OF THE HEART; OR (2) ANY (I) MELANOMA OR (II)
CONDITION OF CANCER AFFECTING THE LYMPHATIC, DIGESTIVE, HEMATOLOGICAL,
URINARY, NEUROLOGICAL, BREAST, REPRODUCTIVE OR PROSTATE SYSTEMS RESULT-
ING IN DISABILITY TO A MEMBER COVERED BY THIS SECTION, PRESENTLY
EMPLOYED AND WHO SHALL HAVE SUSTAINED SUCH DISABILITY AS THE RESULT OF
AN ACCIDENT NOT CAUSED BY HIS OR HER OWN WILLFUL NEGLIGENCE SUSTAINED IN
SUCH SERVICE AND WHILE ACTUALLY A MEMBER OF THE RETIREMENT SYSTEM, WHO
SUCCESSFULLY PASSED A PHYSICAL EXAMINATION ON ENTRY INTO SERVICE AS AN
AIRPORT FIREFIGHTER APPRENTICE, AIRPORT FIREFIGHTER I, AIRPORT FIRE-
FIGHTER II, AIRPORT FIREFIGHTER III OR TRAINING AND SAFETY OFFICER WHICH
EXAMINATION FAILED TO DISCLOSE EVIDENCE OF ANY DISEASE OR OTHER IMPAIR-
MENT OF THE HEART OR SUCH MELANOMA OR CONDITION, SHALL BE PRESUMPTIVE
EVIDENCE THAT SUCH DISABILITY OR DEATH (A) WAS CAUSED BY THE NATURAL AND
PROXIMATE RESULT OF AN ACCIDENT, NOT CAUSED BY SUCH FIREFIGHTER'S OWN
NEGLIGENCE AND (B) WAS INCURRED IN THE PERFORMANCE AND DISCHARGE OF
A. 7906 3
DUTY, UNLESS THE CONTRARY BE PROVEN BY COMPETENT EVIDENCE AND SHALL BE
PAID A PERFORMANCE OF DUTY DISABILITY RETIREMENT ALLOWANCE EQUAL TO THAT
WHICH IS PROVIDED IN SECTION SIXTY-THREE OF THIS TITLE, SUBJECT TO THE
PROVISIONS OF SECTION SIXTY-FOUR OF THIS TITLE.
C. NOTWITHSTANDING ANY PROVISION OF THIS CHAPTER OR OF ANY GENERAL OR
SPECIAL LAW TO THE CONTRARY, ANY CONDITION OF IMPAIRMENT OF HEALTH
CAUSED BY DISEASES OF THE LUNG, RESULTING IN DISABILITY TO A MEMBER
COVERED BY THIS SECTION, PRESENTLY EMPLOYED AND WHILE ACTUALLY A MEMBER
OF THE RETIREMENT SYSTEM, WHO SUCCESSFULLY PASSED A PHYSICAL EXAMINATION
ON ENTRY INTO SERVICE AS AN AIRPORT FIREFIGHTER APPRENTICE, AIRPORT
FIREFIGHTER I, AIRPORT FIREFIGHTER II, AIRPORT FIREFIGHTER III OR TRAIN-
ING AND SAFETY OFFICER, WHICH EXAMINATION FAILED TO DISCLOSE EVIDENCE OF
ANY DISEASE OR OTHER IMPAIRMENT OF THE LUNG, 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 AND SHALL BE
PAID A PERFORMANCE OF DUTY DISABILITY RETIREMENT ALLOWANCE EQUAL TO THAT
WHICH IS PROVIDED IN SECTION SIXTY-THREE OF THIS TITLE, SUBJECT TO THE
PROVISIONS OF SECTION SIXTY-FOUR OF THIS TITLE.
S 2. The retirement and social security law is amended by adding two
new sections 607-i and 607-j to read as follows:
S 607-I. PERFORMANCE OF DUTY DISABILITY RETIREMENT. A. ANY MEMBER OF
THE RETIREMENT SYSTEM EMPLOYED BY THE DIVISION OF MILITARY AND NAVAL
AFFAIRS SHALL BE ELIGIBLE TO RETIRE PURSUANT TO THE PROVISIONS OF THIS
SECTION IF HE OR SHE IS AN AIRPORT FIREFIGHTER APPRENTICE, AIRPORT FIRE-
FIGHTER I, AIRPORT FIREFIGHTER II, AIRPORT FIREFIGHTER III OR TRAINING
AND SAFETY OFFICER.
B. NOTWITHSTANDING ANY PROVISION OF THIS CHAPTER OR OF ANY GENERAL OR
SPECIAL LAW TO THE CONTRARY, ANY MEMBER WHO BECOMES PHYSICALLY OR
MENTALLY INCAPACITATED AS THE RESULT OF A DISABILITY FROM ANY CONDITION
OF IMPAIRMENT OF HEALTH CAUSED BY: (1) DISEASES OF THE HEART; OR (2) ANY
(I) MELANOMA OR (II) CONDITION OF CANCER AFFECTING THE LYMPHATIC, DIGES-
TIVE, HEMATOLOGICAL, URINARY, NEUROLOGICAL, BREAST, REPRODUCTIVE OR
PROSTATE SYSTEMS, WHO IS PRESENTLY EMPLOYED AND WHO SHALL HAVE SUSTAINED
SUCH DISABILITY WHILE SO EMPLOYED AND WHILE ACTUALLY A MEMBER OF THE
RETIREMENT SYSTEM, WHO SUCCESSFULLY PASSED A PHYSICAL EXAMINATION ON
ENTRY INTO SERVICE AS AN AIRPORT FIREFIGHTER APPRENTICE, AIRPORT FIRE-
FIGHTER I, AIRPORT FIREFIGHTER II, AIRPORT FIREFIGHTER III OR TRAINING
AND SAFETY OFFICER, WHICH EXAMINATION FAILED TO DISCLOSE EVIDENCE OF ANY
DISEASE OR OTHER IMPAIRMENT OF THE HEART OR SUCH MELANOMA OR CONDITION,
SHALL BE PRESUMPTIVE EVIDENCE THAT SUCH DISABILITY OR DEATH (A) WAS
CAUSED BY THE NATURAL AND PROXIMATE RESULT OF AN ACCIDENT, NOT CAUSED BY
SUCH FIREFIGHTER'S OWN NEGLIGENCE AND (B) WAS INCURRED IN THE PERFORM-
ANCE AND DISCHARGE OF DUTY, UNLESS THE CONTRARY BE PROVEN BY COMPETENT
EVIDENCE AND SHALL BE PAID A PERFORMANCE OF DUTY DISABILITY RETIREMENT
BENEFIT PAYABLE PURSUANT TO THIS SECTION.
C. APPLICATION FOR A PERFORMANCE OF DUTY DISABILITY RETIREMENT ALLOW-
ANCE FOR SUCH A MEMBER MAY BE MADE BY:
1. SUCH MEMBER;
2. THE HEAD OF THE DEPARTMENT IN WHICH SUCH MEMBER IS EMPLOYED; OR
3. SOME PERSON ACTING ON BEHALF OF AND AUTHORIZED BY SUCH MEMBER.
D. AFTER THE FILING OF SUCH AN APPLICATION SUCH MEMBER SHALL BE GIVEN
ONE OR MORE MEDICAL EXAMINATIONS.
E. IF THE COMPTROLLER DETERMINES THAT THE MEMBER IS PHYSICALLY OR
MENTALLY INCAPACITATED FOR THE PERFORMANCE OF DUTY AND OUGHT TO BE
A. 7906 4
RETIRED FOR PERFORMANCE OF DUTY DISABILITY, SUCH MEMBER SHALL BE SO
RETIRED. SUCH RETIREMENT SHALL BE EFFECTIVE AS OF A DATE APPROVED BY THE
COMPTROLLER.
F. THE RETIREMENT ALLOWANCE PAYABLE UPON RETIREMENT FOR PERFORMANCE OF
DUTY DISABILITY SHALL CONSIST OF A PENSION OF ONE-HALF OF HIS OR HER
FINAL AVERAGE SALARY PLUS AN ANNUITY WHICH SHALL BE THE ACTUARIAL EQUIV-
ALENT OF SUCH 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, SUCH MEMBER MAY
SIMULTANEOUSLY FILE AN APPLICATION FOR SERVICE RETIREMENT IN ACCORDANCE
WITH THE PROVISIONS OF SECTION SEVENTY OF THIS CHAPTER, PROVIDED THAT
THE MEMBER INDICATES ON THE APPLICATION FOR SERVICE RETIREMENT THAT SUCH
APPLICATION IS FILED WITHOUT PREJUDICE TO THE APPLICATION FOR PERFORM-
ANCE OF DUTY DISABILITY RETIREMENT.
H. ANY BENEFIT PROVIDED PURSUANT TO THIS SECTION SHALL NOT BE CONSID-
ERED AS AN ACCIDENTAL DISABILITY BENEFIT WITHIN THE MEANING OF SECTION
SIXTY-FOUR OF THIS CHAPTER. 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.
S 607-J. CERTAIN IMPAIRMENTS OF HEALTH; PRESUMPTION. A. ANY MEMBER OF
THE RETIREMENT SYSTEM EMPLOYED BY THE DIVISION OF MILITARY AND NAVAL
AFFAIRS SHALL BE ELIGIBLE TO RETIRE PURSUANT TO THE PROVISIONS OF THIS
SECTION IF HE OR SHE IS AN AIRPORT FIREFIGHTER APPRENTICE, AIRPORT FIRE-
FIGHTER I, AIRPORT FIREFIGHTER II, AIRPORT FIREFIGHTER III OR TRAINING
AND SAFETY OFFICER.
B. NOTWITHSTANDING ANY PROVISION OF THIS CHAPTER OR OF ANY GENERAL OR
SPECIAL LAW TO THE CONTRARY, ANY CONDITION OF IMPAIRMENT OF HEALTH
CAUSED BY: (1) DISEASES OF THE HEART; OR (2) ANY (I) MELANOMA OR (II)
CONDITION OF CANCER AFFECTING THE LYMPHATIC, DIGESTIVE, HEMATOLOGICAL,
URINARY, NEUROLOGICAL, BREAST, REPRODUCTIVE OR PROSTATE SYSTEMS RESULT-
ING IN DISABILITY TO A MEMBER COVERED BY THIS SECTION, PRESENTLY
EMPLOYED AND WHO SHALL HAVE SUSTAINED SUCH DISABILITY AS THE RESULT OF
AN ACCIDENT NOT CAUSED BY HIS OR HER OWN WILLFUL NEGLIGENCE SUSTAINED IN
SUCH SERVICE AND WHILE ACTUALLY A MEMBER OF THE RETIREMENT SYSTEM, WHO
SUCCESSFULLY PASSED A PHYSICAL EXAMINATION ON ENTRY INTO SERVICE AS AN
AIRPORT FIREFIGHTER APPRENTICE, AIRPORT FIREFIGHTER I, AIRPORT FIRE-
FIGHTER II, AIRPORT FIREFIGHTER III OR TRAINING AND SAFETY OFFICER WHICH
EXAMINATION FAILED TO DISCLOSE EVIDENCE OF ANY DISEASE OR OTHER IMPAIR-
MENT OF THE HEART OR SUCH MELANOMA OR CONDITION, SHALL BE PRESUMPTIVE
EVIDENCE THAT SUCH DISABILITY OR DEATH (A) WAS CAUSED BY THE NATURAL AND
PROXIMATE RESULT OF AN ACCIDENT, NOT CAUSED BY SUCH FIREFIGHTER'S OWN
NEGLIGENCE AND (B) WAS INCURRED IN THE PERFORMANCE AND DISCHARGE OF
DUTY, UNLESS THE CONTRARY BE PROVEN BY COMPETENT EVIDENCE AND SHALL BE
PAID A PERFORMANCE OF DUTY DISABILITY RETIREMENT ALLOWANCE EQUAL TO THAT
WHICH IS PROVIDED IN SECTION SIXTY-THREE OF THIS CHAPTER, SUBJECT TO THE
PROVISIONS OF SECTIONS SIXTY-THREE AND SIXTY-FOUR OF THIS CHAPTER.
C. NOTWITHSTANDING ANY PROVISION OF THIS CHAPTER OR OF ANY GENERAL OR
SPECIAL LAW TO THE CONTRARY, ANY CONDITION OF IMPAIRMENT OF HEALTH
CAUSED BY DISEASES OF THE LUNG, RESULTING IN DISABILITY TO A MEMBER
COVERED BY THIS SECTION, PRESENTLY EMPLOYED AND WHILE ACTUALLY A MEMBER
OF THE RETIREMENT SYSTEM, WHO SUCCESSFULLY PASSED A PHYSICAL EXAMINATION
ON ENTRY INTO SERVICE AS AN AIRPORT FIREFIGHTER APPRENTICE, AIRPORT
FIREFIGHTER I, AIRPORT FIREFIGHTER II, AIRPORT FIREFIGHTER III OR TRAIN-
ING AND SAFETY OFFICER, WHICH EXAMINATION FAILED TO DISCLOSE EVIDENCE OF
A. 7906 5
ANY DISEASE OR OTHER IMPAIRMENT OF THE LUNG, 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 AND SHALL BE
PAID A PERFORMANCE OF DUTY DISABILITY RETIREMENT ALLOWANCE EQUAL TO THAT
WHICH IS PROVIDED IN SECTION SIXTY-THREE OF THIS CHAPTER, SUBJECT TO THE
PROVISIONS OF SECTION SIXTY-FOUR OF THIS CHAPTER.
S 3. This act shall take effect immediately; provided, however, that
sections 607-i and 607-j of the retirement and social security law, as
added by section two of this act, shall expire on the same date as arti-
cle 15 of such law expires pursuant to section 615 of such law.
FISCAL NOTE.--Pursuant to Legislative Law Section 50:
This bill would grant improved disability pensions to airport fire-
fighters and training and safety officers in the New York State division
of military and naval affairs who sustain a disability related to heart
disease, lung disease and certain forms of cancer. This bill would help
individuals who sustained such disabilities to establish the presumption
that they were incurred in the performance and discharge of duty, unless
the contrary be proven by competent evidence. The benefit for a heart or
cancer related accidental disability, or a lung disease related perform-
ance of duty disability would be 75% of final average salary less work-
er's compensation. The benefit for a heart or cancer related performance
of duty disability benefit would be 50% of final average salary.
If this bill is enacted, the disability benefits of affected members
with heart, lung of certain cancer related disabilities would increase
from approximately 1/3 of final average salary (FAS) to 50% of FAS or
75% of FAS. The estimated increase in the annual contributions of the
State of New York for the fiscal year ending March 31, 2009 would be
approximately $24,000.
These estimated costs are based on ninety-four (94) members having an
annual salary for the fiscal year ending March 31, 2009 of approximately
$4.4 million.
This estimate, dated March 25, 2009, and intended for use only during
the 2009 Legislative Session, is Fiscal Note No. 2009-146, prepared by
the Actuary for the New York State and Local Employees' Retirement
System.