Denial of Benefits: Line of Duty Disability for EMT Workers

If NYC Emergency Medical Technicians are disabled because of an injury which happens on the job, they are entitled to a life time 3/4's benefit. The benefit is offset by any associated Workers Compensation payments. The precise wording of the statute is listed below. The key words in the statute are "shall be paid". That means from the date an EMT is disabled, NYCERS has an obligation to pay that person a 3/4's benefit. NYCERS is not given any discretion in this matter except to determine that such worker is disabled because of a line of duty injury.

Line of Duty Disability Statute for NYC EMT's

§ 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 section 13-176 of the administrative code of the city of New York.

Now it has come to my attention that NYCERS has convinced a trial judge, Arthur M. Schack, in the Second Department that a disabled EMT worker must be employed as an EMT worker to be eligible to file for this benefit.

FDNY had terminated this particular EMT member for medical reasons under Section 72 of the state civil service law. Subsequently, when she tried to apply for a S.607-b disability, NYCERS told her she was not eligible to file because she was no longer working for FDNY.

Since the statute has no filing requirement, this must be a rule adopted by NYCERS. A rule that allows NYCERS to deny to member a benefit that the legislature granted to him/her.

Doctors Council and the Limits on NYCERS Rule Making Authority

Now, the NYS Court of Appeals has previously addresses this issue in Doctors Council v. NYCERS 71 N.Y. 2nd 669 (1988). NYCERS had tried by rule to exclude part-time city workers from membership in the retirement system when the statute stated in the definition of membership "All persons in city service" and "service paid for by the city". Let me quote from the decision:

The NYCERS Board of Trustees surely lacks the authority to create retirement eligibility; it likewise lacks the power to disentitle employees whom the Legislature has endowed. To countenance the latter, as has been urged here by the City, would allow the agency to, in effect, amend the heart of this statute. "An administrative agency cannot by regulatory fiat directly or indirectly countermand a statute enacted by the Legislature" (Servomation Corp. v State Tax Commn., 51 N.Y.2d 608, 612, supra; see, Kurcsics v Merchants Mut. Ins. Co., 49 N.Y.2d 451, 459, supra). Where, as here, the statute described the particular class of persons, "an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded" (McKinney's Cons Laws of NY, Book 1, Statutes § 240; see, Eaton v New York City Conciliation & Appeals Bd., 56 N.Y.2d 340, 345). Thus, the resolution of the NYCERS Board of Trustees cannot be legitimized by judicial ratification (see, Matter of Industrial Commn. of State of N. Y. v Five Corners Tavern, 47 N.Y.2d 639, 646-647).

This binding decision clearly prohibits NYCERS from creating a rule which "disentitles" a member's right to a benefit.

I have perviously commented on denial of benefits by NYCERS. This is again an example of the abuse of power by NYCERS and its legal staff directed by Karen Mazza. This woman is a total disaster and the trustees must relieve her of her duties.

Needless to say the member did not have the resources to proceed further in the courts and has lost her statutory benefit. NYCERS has again crushed a member.