This is the first in a series of items that I will be posting. They will outline a vendetta that Karen Mazza has undertaken against disabled EMS retirees.
August 11, 2008
Ms. Marianne Pizzitola
FDNYEMS Retirees Association, Inc. -- PO Box 260153 -- Bellerose, NY 11426
Dear Ms. Pizzitola:
I am writing in response to your August 11, 2008 letter requesting an analysis of the attached May 5, 2008 letter from Karen Mazza concerning NYCERS’s new earnings limits for disabled retirees who retired under Section 607-b of the NYS Retirement and Social Security Law (RSSL). For the record I was the executive director at NYCERS from 1990 to 2005, deputy executive director from 1986 to 1990, and deputy director of information technology from 1977 to 1986.
The May 5, 2008 letter from Karen Mazza to Dennis Sullivan appears to notify District Council 37 of the reinterpretation of RSSL Section 607-b, a line of duty disability benefit for EMS workers. Locals 2507 and 3621 represent those workers and belong to DC-37. It is interesting that DC-37 needed to be notified since DC-37 is a full voting member of the Board of Trustees which administers NYCERS. DC-37 would have had to vote on any change in NYCERS rules.
Ms. Mazza states that according to the new interpretation retirees under Section 607-b are now subject to an annual earnings limitation, both public and private sector, equal to $26,000 during 2007.
She claims that the NYC Law Department affirms this new finding. She does not, however, provide a copy of the NYC Law Department’s confirmation or interpretation. My experience with Ms Mazza leads me to doubt that such written confirmation or interpretation exists. Verbal statements are useless as Ms. Mazza should know.
In addition, Ms. Mazza is not authorized to make legal determinations on NYCERS pension statutes. That authority rests solely with the NYC Law Department.
Ms. Mazza attempts to justify the new interpretation by pointing out the following clause in Section 607-b “subject to the provisions of subdivision c of Section 605 of this article”. She then incorrectly argues that this wording imposes the Section 605 gainful employment criteria on Section 607-b retirees and in turn the amellorative earnings definition adopted by the NYCERS trustees in response to 1983 legislation.
Ms. Mazza refers to the resolution and rules adopted by the trustees in 1983 in conjunction with the passage of Section 605 into law. Please note Ms. Mazza does not provide copies of the resolution or rules. Ms. Mazza was not present in 1983 when the trustees were dealing with Section 605. I, however, was.
In 1983 the state legislature enacted a new disability benefit to replace the Tier 3 ordinary and accident benefits (Sections 506 & 507) which were dependent on the Social Security Administration for a determination of disability. Depending on an outside agency caused serious operational problems for the five effected NYS retirement systems (NYSLERS, NYSTRS, NYCERS, NYCTRS, and BERS).
The new Sections 605 and 507-a returned the disability determination to the associated five retirement systems but incorporated the gainful employment concept used by the Social Security Administration into the new statutes. Specifically Section 605 states:
“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.”
This still presented the trustees with a serious problem. On its face Section 605 only allows a member to retire for disability if he/she was determined to be physically or mentally incapacitated for the performance of gainful employment.
This is different than the traditional Tier 1 & 2 performance of the duties of member’s current job title. This meant a bus driver who lost both his legs in a bus accident would be denied disability because he/she could work at a desk job. It would also inevitably create pressure to have employers provide alternative employment for injured employees who were denied disability benefits. Management was not happy with that prospect.
As a compromise the NYCERS trustees and the NYC Law Department established a dollar threshold as a proxy for the gainful employment criteria. As long as a retiree was disabled with respect to the duties of his/her job title and did not earn more than $13,000/year (indexed for inflation, $26,000 in 2007), he/she was deemed not to be gainfully employed.
This was an easing of a requirement, not an imposition of a limitation. While it was an improvement over a strict interpretation of gainful employment, it was still harsh. If a retiree earned more than $13,000, he/she permanently lost the disability benefit on the theory that he/she was capable of gainful employment.
This is not an annual earnings limit. It was a marker for the performance of gainful employment. Section 605 does not authorize the Board of Trustees to impose annual earnings limitations on disabled retirees, only to determine if they are disabled and continue to be disabled as time goes on.
Section 607-b is fundamentally a different type of disability benefit from Section 605. It is a ¾ quarters line of duty benefit granted to a member if he/she is etermined to be physically or mentally incapacitated for the performance of his/her duties, and not the performance of gainful employment. See the following wording of Section 607-b:
“becomes physically or mentally incapacitated for the performance of duties as the natural and proximate result of an injury, sustained in the performance or discharge of his or her duties shall be paid a performance of duty disability retirement allowance equal to three-quarters of final average salary, subject to the provisions of subdivision c of section six hundred five of this article,…”
The reference to Section 605.c does not bring gainful employment into play for this benefit. The specific wording of Section 607-b quoted above supersedes the “gainful employment” criteria of Section 605.c which Ms. Mazza mistakenly depends on. Contrast the Section 607-b words above with the Section 605 words below:
“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.”
They are in conflict and clearly the Section 607-b takes precedence. In fact, Section 607-b.b carves out a special line of duty presumption for a member who contracts HIV, tuberculosis, or hepatitis. This clearly shows that these conditions are considered disabling independent of the gainful employment criteria.
It is rather the following portion of Section 605.c that is applicable:
“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.”
This provision addresses the determination of the original disability and the continued existence of that disability. Performance of duties, not gainful employment is the criteria, clearly stated in Section 607-b. Again, as stated above, Section 605.c does not authorize the trustees to impose earnings limitations on disabled retirees.
Section 607-b was designed to provide a special disability benefit to EMS members who were injured in the line of duty. Absent clear language, similar to Section 13-171 of NYC Administrative Code, the trustees have no authority to impose earnings limitations on this benefit. This was the original interpretation adopted by NYCERS and it is the correct interpretation.
It should be noted that the legislature clearly incorporated Section 13-176 of the NYC Administrative Code into Section 607-b but chose not to include Section 13-171 of that code.
Ms Mazza refers to “gainful employment safeguards”. This is a mistaken use of words in Tier 4. As I indicated above, there is a safeguards provision in Tier 1 & 2 (Section 13-171 Safeguards on disability retirement, NYC Admin Code), but there is no such provision in Tier 3 or 4.
From my personal experience with Ms. Mazza she has very poor legal insight due to her aversion to reading the applicable statutes, her lack of overall effort, and the limited time she spends in the office. She has also had serious ethical lapses which are indicative of poor judgment on her part.
It is unfortunate that the trustees have allowed Ms. Mazza to be in a position where she can improperly deny benefits to members and retirees of NYCERS.
Sincerely yours, John J. Murphy
Cc: Inga Van Eysden, NYC Law Department Dennis Sullivan, DC-37
§ 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 within three months from the last
date the member was being paid on the payroll or, 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.
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.
§ 607-b. Performance of duty disability retirement. a. Any member of
the New York city employees' retirement system who is employed by the
city of New York or by the New York city health and hospital corporation
in the position of emergency medical technician or advanced emergency
medical technician, as those terms are defined in section three thousand
one of the public health law, who, on or after March seventeenth,
nineteen hundred ninety-six, becomes physically or mentally
incapacitated for the performance of duties as the natural and proximate
result of an injury, sustained in the performance or discharge of his or
her duties shall be paid a performance of duty disability retirement
allowance equal to three-quarters of final average salary, subject to
the provisions of subdivision c of section six hundred five of this
article and section 13-176 of the administrative code of the city of New
York. Any member who has made application or who, after the effective
date of the chapter of the laws of two thousand four which amended this
subdivision, makes application for such performance of duty pension
shall be entitled to invoke the medical review procedure provided for in
subdivision e of section six hundred five of this article, subject to
the terms and conditions set forth in such subdivision.
b. Notwithstanding any provision of this chapter or of any general or
special law to the contrary, a member covered by this section who
contracts HIV (where the member may have been exposed to a bodily fluid
of a person under his or her care or treatment, or while the member
examined, transported or otherwise had contact with such person, in the
performance of his or her duties) tuberculosis or hepatitis, will be
presumed to have contracted such disease in the performance or discharge
of his or her duties, unless the contrary be proved by competent
evidence.
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