Tier 6 Corrections and Sanitation Enhanced Disability Benefits - Update

Tracking the Tier 6 Enhanced Disability Benefits

In 2017, I posted comments on the enhanced disability benefits for Tier 6 Correction and Sanitation workers. Using Article 25 of the NYS RSSL these benefits are not documented in law but are agreed upon by the NYC mayor and each of the associated unions. The cost of the added benefits is required to be paid by additional member contributions (AMC) from the covered Corrections and Sanitation NYCERS members.

I recently requested copies of these agreements from NYCERS, and the records officer quickly provided me with copies of the mayor’s orders and the petitions from the associated unions outlining the enhanced benefit improvements. The orders for Sanitation members were signed by Mayor de Blasio on August 30, 2016, and the orders for Corrections were signed on November 29, 2016. The actual documents give a clearer picture of the new benefits than were given by PR releases.

There is an interesting phrase in each of the mayor’s order “all determinations concerning the interpretation of the benefit enhancements provide herein shall be made by the Mayor or his authorized designee”.

This gives the sitting mayor unilateral control over the benefits and creates strange issues if there is litigation concerning these benefits and, in another way, who is the administrator of these benefits?

Benefit Analysis

The first thing that struck me was that the benefit enhancements are different for the two groups.

Tier 3

In 1976, Tier 3 was passed into law with two disability benefits, Sections 506 (ordinary) and 507 (accident). Right away there were problems with these two sections along with other items in Tier 3. These problems motivated the passage of Tier 4 in 1983.

The main problem with Section 506 and 507 was that the determination of whether a member was disabled or not was made by the Social Security Administration. That determination is based on the capability of gainful employment. It was not based on the member’s ability to perform his/her specific civil service job function. It was also a problem that it was controlled by an outside agent and not the retirement system.

Tier 4

In 1983, Tier 4 removed everyone from Tier 3 except state and city Correction officers but
added S.507-a (ordinary and accident diability benefit) to Tier 3
in order to remove the SSA determination of disability and
replace it with a determination by the retirement system of whether the member was able to perform his/her job.

Tier 3

In 1997, Section 507-c was passed into law which granted state and city Correction officers a 75% benefit if they were disabled because of an accident on the job. The retirement system made the disability determination, not SSA.
There were also certain accident presumptions added to this benefit.
This benefit was not eleigible for Tier 3 escalation.

In 2009 new NYC police and fire members were forced into Tier 3 and they subsequently had S.507 modified to allow their disability determinations to be made by their retiremet systems rather than SSA.

Tier 6

In 2012, Tier 6 mandated new state and city Corrections memebers and city Sanitation members into Tier 3 with Tier 6 restrictions.

Tier 6 adopted the two basic Tier 3 disability benefits in Section 506 (ordinary) and Section 507 (accident),
and it shut down the two other Tier 3 disability benefits, Sections 507-a (ordinary/accident) and 507-c (accident)
for city correction officers.

Tier 6, however, allowed NYCERS members in Tier 3 applying for S.507 to have their disability to be determined by NYCERS under the job function criteria.
S.506, however, still requires SSA to make the disability determination.

Note: Prior to Tier 6, new Sanitation workers were eligible for Tier 4 benefits.

Actual Enhancements

With the enhancements, Tier 6 Sanitation members only upgraded their S.506 and S.507 benefits. While Tier 6 Corrections not only upgraded their S.506 and S.507 benefits but reinstated their S-507-a and 507-c benefits.

Sanitation

With enhancement, Tier 6 Sanitation members were able to drop their 50% Social Security offset for both S.506 and 507 and increase their accident (S.507) award from 50% to 75% along with a Heart Bill presumption.
S.506 is still under the Social Security Administration disability determination but not S.507.
One other item, that was included in the enhancement, was that Tier 3 escalation was dropped from S.506 and S.507.
It was replaced by a lesser COLA provision paid to all retirees.

Corrections

Tier 6 Corrections Officers members were also able to drop their 50% Social Security offset for S.506 and 507.
The award amount still stayed at 50% for S.507 but with an added Heart Bill presumption.
The S.506 is still has a SSA disability determination but not S.507.
One other item, that was included in the enhancement, was that Tier 3 escalation was dropped from S.506 and S.507.
It was replaced by a lesser COLA provision paid to all retirees.

However, Tier 6 Correction Officer members were also able to reinstate S.507-a and 507-c, ordinary and accident disability benefits.
They also were able to add the Heart Bill presumption to both benefits.
With enhancement, S.507-a lost its escalation benefit but gained the COLA benefit.
S.507-c never had the escalation benefit and only picked up the COLA benefit when it was added in 2000.

Going forward, most disability awards for Tier 6 Enhanced Corrections members will be under S.507-a and S-507-c.

Cost Tracking for the Enhanced Benefits

The initial cost for these benefits was quoted in the union petitions as 1.3% for Sanitation members and 0.8% for Corrections members. There was no actuarial justification given for these percentages. At first blush, the Corrections enhancement should have been more expensive than the Sanitation enhancement. The lack of justification is a serious problem because this benefit structure now has two guarantors, the city, and the members. This is a radical change from all other NYCERS benefits where the city is the sole guarantor.

The actuary did not publicly report his analysis of these initial cost percentages.

My rough estimates of the increased cost for the enhanced benefits are:

1. Sanitation S.506 – 45% (dropping SS offset and switching to COLA)
   • With $90,000 FAS and $10,000 50% SS
   • Basic Tier-6 $19,970 plus Escalation
   • Enhanced $29,870 plus COLA
2. Sanitation S.507 – 86% (dropping SS Offset, switching to COLA, and 50% to 75%)
   • With $90,000 FAS and $10,000 50% SS
   • Basic Tier-6 $35,000 plus Escalation
   • Enhanced $67,500 plus COLA
3. Sanitation S.507 – 86% (Heart Bill - dropping SS Offset, switching to COLA, and 50% to 75%)
   • With $90,000 FAS and $10,000 50% SS
   • Basic Tier-6 $0
   • Enhanced $67,500 plus COLA
4. Corrections S.506 – 45% (dropping SS offset and switching to COLA)
   • With $90,000 FAS, $10,000 50% SS, and $10,000 - 100% WC
   • Basic Tier-6 $9,970 plus Escalation
   • Enhanced $19,870 plus COLA
5. Corrections S.507 – 24% (dropping SS Offset, switching to COLA)
   • With $90,000 FAS and $10,000 50% SS, and $10,000 - 100% WC
   • Basic Tier-6 $25,000 plus Escalation
   • Enhanced $35,000 plus COLA
6. Corrections S.507 – 100% (for Heart Bill)
   • With $90,000 FAS and $10,000 50% SS, and $10,000 - 100% WC
   • Basic Tier-6 $0
   • Enhanced $35,000 plus COLA
7. Corrections S.507-a – 100%/100% (adding benefit and switching to COLA/and adding Heart Bill)
   • With $90,000 FAS
   • Basic Tier-6 $0
   • Enhanced $29,970 plus COLA
8. Corrections S.507-c – 100%/100% (adding just benefit/adding Heart Bill and other special presumptions)
   • With $90,000 FAS and $10,000 100% WC
   • Basic Tier-6 $0
   • Enhanced $57,500 plus COLA

For example, the Sanitation S-507 enhancement benefit would go from $35,000 to $67,500 per year. With an annuity factor of 13, the difference of $32,500 per year would produce an added pension reserve cost at retirement of roughly $422,000 which would have to be withdrawn from the Sanitation AMC fund. This amount would actually be some what smaller because of the ecalation replacement.

As per the unions’ benefit petitions, the actuary is supposed to evaluate the cost distribution every three years and if needed, adjustthe payroll contribution rate. As such, he needs to notify NYCERS of his analysis. There has been no public reporting on this evaluation since 2016.

Neither the NYCERS annual financial statement nor the actuary’s annual valuation report have ever mentioned this tri-annual calculation.

Documents from the Actuary

Following my request to NYCERS, I requested the actuary to send me documentation on how he was tracking the costs for the enhanced benefits and any instructions he had received from the NYC Law Department about the enhanced benefits.

While the actuary sent me some documents, he was evasive about how he produced the numbers he was sending to NYCERS claiming the determination was done by the software package that he uses.

I am not sure he realized I was the former executive director at NYCERS, but he definitely was dodging about how the cost allocations were being done.

He did, however, send me a copy of a May 2, 2025, letter he sent to NYCERS concerning the payroll rates for the 2025-2028 time period.
The letter stated that the new Sanitation rate is 1.4% and the Corrections rate is 1.3%.
The letter also stated that NYCERS had reported 23 Sanitation members, and 114 Corrections members had retired with enhanced disability benefits as of June 30, 2024.
This appears to be consistent with the fact that Corrections enhanced benefits are better than Sanitation enhanced benefits.

The letter reported that 5,035 Sanitation members and 2,771 Correction members were part of the enhanced benefit program as of June 30, 2024. These figures are not consistent with data in the paragraph below.

As per the NYCERS 2024 financial statement, on June 30, 2024, there were 7,572 active Sanitation members and 6,738 Corrections members of which 4,438 Sanitation members and 4,526 Corrections members had less than 14 years of service. Tier 6 has been in force for over 13 years.

Strangely, NYCERS states in its annual financial report that the Tier 6 Corrections and Sanitation enhanced disability AMC’s are capped at 3%. Section 1323 of the RSSL, however, provides no limiting provision for the amount of AMC payment required for enhanced benefits.

In contrast, Tier 6 Police and Fire members have statutory enhanced disability benefits for which that they have to pay AMC’s but the payroll contributions are capped at 3% by law.

The AMC Fund

In a separate spreadsheet the actuary sent to me, he indicated that as of June 30, 2024 the AMC amounts collected were:

• $38,879,205 for Sanitation members and
• $27,003,007 for Corrections members.

There does not appear, however, to be any accounting for the AMC funds in the NYCERS financial statement in a manner similar to the VSF funds. Such accounting would include income statements, earnings, deposits, withdrawals, tax deferrals, and how the fund is being invested. Who is the trustee of this fund? What interest rate does NYCERS credit to the individual member accounts?

Renegotiating the Benefits

There is a claim in all of the unions benefit petitions that if the AMC cost rate exceeds 3%, the unions have the option to reopen negotiations concerning the enhanced benefits with the possibility of modifying or terminating the benefits. This is only an option and the mayor is not bound to any action. If the mayor were to take any action, it would create administrative problems.

NYCERS is an Essential Service to its Members and Retirees

The following NYCERS members are essential workers:

• HHC hospital workers,
• Fire EMS workers,
• MTA subway and bus workers,
• correction officers,
• sanitation workers,
• DEP water and sewage workers,
• DOT highway/street/bridge/ferry workers,
• Police 911 & 311 workers,
• HA maintenance workers,
• TBTA line workers and
• countless others.

Besides getting out the monthly pension checks, NYCERS is required on a critical basis to process retirement applications, disability applications, and death benefit claims.

As of March 15, 2020, NYCERS has been AWOL.

The agency should have been on the front lines supporting the men and women who are risking their lives for people of New York City. The agency has 438 full-time employees and 27 part-timers along with 16 per-diem staff. If you take the time to look up the top salaries at NYCERS, there is no reason that NYCERS should not have committed administrators backing up the city workers out on the street.

These workers are dying and getting disabled. There are also many eligible workers at high risk because of other medical conditions who should be able to quickly and easily retire if their doctors are warning them to stay home.

NYCERS should open its customer service office a la Home Depot. Any member or beneficiary who has a retirement, disability or death claim should be able to directly meet with NYCERS staff and easily get follow up info.

At the very least members should be able file applications in person and receive filing receipts.

There should be at least 50 NYCERS staff on the call center phones every day. Voice messages should be avoided at all costs.

When you give damn, there is always a way.

A Message to the New NYCERS Chairperson

You have a huge problem. Your designated investment manager, the NYC Comptroller, is doing a terrible job with investing NYCERS assets, this Comptroller and the last three. NYCERS has an average annual rate of return over the last 15 years of 2.89%.

The Comptroller, however, has the backing of DC-37 which is the largest city union and also a NYCERS trustee. Between the three city unions on the NYCERS Board and the Comptroller these trustees control four votes, a majority of the total seven votes on the Board.

These votes control investment decisions, disability decisions, the NYCERS administrative budget and the budget subsidies from NYCERS to the Comptroller. The three unions are bound together because of disability votes at the Board. They need to back each other up to be able to get closely contested disability cases resolved in their favor.

Without the annual investment delegation from NYCERS Board of Trustees, the Comptroller has very little political influence. With the change in the City Charter in 1990 the mayor essentially controls the Comptroller’s administrative budget. This totally compromises his operating capabilities and his political influence.

If the Chair wishes to provide some relief to the mayor from the city’s huge pension burden, he will have to take away the Comptroller’s power over investment decisions.

This is a complicated task. Since 2005, DC-37 has run NYCERS as patronage mill for its flunkies. That starts with the executive director and spreads throughout the agency. This also includes regular employees who have criminal liabilities and are more than happy to do as they are told.

As the mayor’s appointee to the Board of Trustees, the Chair will need to take on both of these political entities. This will clearly be a hard fight. The investment issue cannot be resolved without addressing the investment delegation and the internal rot at NYCERS. The Chair will have to convince DC-37 that it is in its long term interest to reduce investment costs and raise returns. He will also have to commit to totally honest and sympathetic votes on disabilities that come before the Board of Trustees.

In return DC-37 and the other unions will have to not vote for the annual investment delegation to the Comptroller in June. It will also mean, however, that DC-37 will have to accept reform within NYCERS because the Comptroller will no longer have any incentive to allow NYCERS executive staff to run wild with the agency.

In eliminating the Comptroller from investment management operations the Board will have to hire a truly independent investment consultant and hire internal NYCERS staff to track investment activity. You can see why NYCERS also needs to be reformed. Current investment consultants under contract to NYCERS have structural conflict of interest issues involving the investment community. A large part of their revenue comes from the investment community.

While the Comptroller is the statutory custodian, he has contracted out almost all of its functions. The Comptroller has even turned over the the pension payroll operations to FISA, another city agency. There really isn't much left of the old Comptroller's Office. Ed Koch really did out maneuver Jay Golden.

The Trustees should set the target for total fee expenses at 10 basis points. That would have saved $130M in FY-2014 ($184M-$54M). The Trustees could then focus on a basic Russell-3000 US stock index fund & core investment grade bond Portfolio. Maybe the bonds could be indexed also. This will make running the portfolio and hiring staff much simpler.

Note: As of June 30, 2014 NYCERS had $11.8B in US equity index funds with annual fees of $500,000 for FY-2014 with an annual rate of return of approximately 24.5% gross of fees. But at 0.4 basis points the fees don't really effect returns. Yes, that is correct. NYCERS only paid a 0.4 basis point, not even half a basis point for that return. You can see why investment managers get nervous when you talk indexing.

The Trustees can then drop all the garbage asset classes listed below. This won’t be easy because of the crazy contracts the Comptroller’s office has signed in the past. I consider these contracts illegal because of the secrecy clauses.

Asset Classes to be Dropped:

NYCERS: Unproducive Investment Classes: Values and Fees for FY-2014

Asset Class	Fees Paid	Value as of June 30, 2014	Basis Points
Convertible bonds	$2.1M	$.5B	42
Bank loans	$3.1M	$1.0B	31
Emerging manager- US stocks	$4.4M	$1.0B	44
Emerging managers – Foreign stocks	$.3M	$.05B	60
Emerging managers – US bonds	not reported	$.1B	***
Private equity	$58.0M	$4.0B (guess)	145
Real estate	$20.87M	$2.3B (guess)	90
Infrastructure	not reported	$.02B	***
Hedge funds	$15.5M	$1.9B (guess)	82
Emerging market/active	$9.1M	$2.3B	39
Developed Market equity	$11.8M	$5.4B	22
Junk bonds	$6.9M	$2.1B	33
Opportunistic Fixed	$16.3M	$1.1B	148
Foreign bonds	$.4M	$.3B	13
Active US equity	$14.2M	$5.3B	26
TIP bonds	$1M	$1.5B	7
Subsidy to the Comptroller	$2.3M
Foreign taxes	$8.8M

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.

A Plea to Bill De Blasio, John Liu, and Scott Stringer.

I know this posting is probably a waste but I have to try one last time. I spent over thirty years trying to help the members and retirees of NYCERS and it drives me crazy when I see the current management trashing them.

In a June 30, 2013 posting I wrote about how NYCERS and in particular, Karen Mazza, was crushing a disablity retiree.

I am making a direct appeal to Bill De Blasio, John Liu, and Scott Stringer, and the other members of the NYCERS Board of Trustees to correct Mazza's mistake. If this was March 1, 2005 when I was executive director, NYCERS would have given this retiree his legal due process. I am asking you now as the head of the agency to do the same.

Two days ago I received a copy of a new letter from Mazza concerning this case. This letter is dated July 30, 2013 and is in response to a July 9, 2013 letter from the original lawyer asking the trustees to correct a NYCERS error. The error occurred in 1990 when NYCERS did not process the retiree's application for accident disability under S.507.

In a June 18, 2013 letter, Mazza had denied an initial April 19, 2013 request from the lawyer. Mazza had stated that the Medical Board had determined that the incident was not an accident and therefore there was no need to process the member's S.507 application.

In the July 30, 2013 letter Mazza was forced to apologize for the false statement she made in her first letter. She now claims:

What I should have written was: "Since the Medical Board had already determined that the on-duty event did not aggravate the condition he claimed to be disabling, he was not eligible to be considered under S.507 of the RSSL for accident disability."

As an aside, this woman is a licensed attorney getting paid a lot of money. To any competent lawyer this correspondence above is a hard reflection on Mazza's competence as lawyer. It reminds me of a clip from a deposition from years ago. You can read it below.

We also can see Mazza's dubious footwork in the following sentence trying to shift responsibility for her words to the outside lawyer:

I apologize for this error. Nevertheless, on the basis of our prior correspondence about this case, you should have been aware that the Medical Board's determination was related to the causation issue rather than the accident/incident issue.

While Mazza's original statement was false, her new statement about causation is both false and absurd. If the Medical Board finds a member not disabled under S.605, it is not possible for the Board to determine whether the incident caused a nonexistent disability. The Board is not authorized to make hypothetical determinations.

In addition, the final determinations on causation and accident are made by the Board of Trustees. Since the member, under S.605, was not disabled, the Trustees never addressed the causation and/or accident issues for this member nor made a final determination on these issues. The member had no opportunity at that time to argue these two issues before the Board of Trustees.

Since causation was not dealt with in the S.605 process, it is absolutely clear the S.507 application should have been processed in 1990 but it was not. No notice of denial was given to the member in 1990. Since NYCERS must correct all errors, it must process the original S.507 application.

The Medical Board must review the Social Security Administration disability decision and the documentation that supported that decision. They must accept the disability determination made by the Social Security Administration in spite of the fact that it is contrary to their own medical determination. They then must in good faith make recommendations on causation and accident relative to the disability and the claimed incident.

The Medical Board's recommendations must then be submitted to the Board of Trustees to make the decision about whether the incident caused the disabilty and whether the incident was an accident. The retiree has the right to argue his case before the trustees.

In closing, I am asking Bill De Blasio, John Liu, Scott Stringer, and the other trustees to do the right thing.

From an old Mazza deposition, "What I Wrote is Not What I Meant."

          16          Q.    I will direct your attention to the

          17     upper part of the memo.

          18                What do you mean you're uncomfortable

          19     if anybody in-house asks to see your deleted

          20     E-mails; uncomfortable about what?

          21          A.    I wanted to know if anybody else was

          22     asking to look at those deleted E-mails.

          23          Q.    That wasn't my question.  I understand

          24     that.  That is what it says.  My question to you

          25     is, why were you uncomfortable about this
 

                                                                  61

           1                            Mazza

           2     information being recoverable, the deleted

           3     E-mails?

           4                MR. MARKS:  Objection to the form.

           5          A.    I wasn't uncomfortable with it being

           6     recoverable.  I was uncomfortable with other

           7     people asking to see it.

           8          Q.    I am reading what you wrote.  "I am

           9     somewhat uncomfortable with this info being

          10     recoverable."  That is not my words.  That is what

          11     it says here.

          12                My question is, when you wrote this,

          13     why did you say that?  What were you uncomfortable

          14     with about having this information, that is the

          15     deleted E-mails, being recoverable?

          16                MR. MARKS:  Objection to the form.

          17          A.    That is not -- what I wrote is not what

          18     I meant.  When I say recoverable, I meant being

          19     seen by somebody else.

          20          Q.    Well, you couldn't see it if it wasn't

          21     recovered.

          22          A.    Right.

          23          Q.    Why were you uncomfortable that the

          24     E-mails that you had deleted would be seen by

          25     somebody else "in-house"?  Why?
 

                                                                  62

           1                            Mazza

           2          A.    My purpose in writing that paragraph

           3     was, we were in the middle of a DOI investigation

           4     and I wanted to know if anybody else was asking

           5     Kin to show them my deleted E-mails.

           6          Q.    You're not answering my question.

           7                I asked you, using your own words, why

           8     were you uncomfortable with this information being

           9     recoverable.  I am asking you why.

          10          A.    I answered you and said that --

          11          Q.    No, you haven't answered me.  Why were

          12     you uncomfortable; because it would show that you

          13     doctored a resume?

          14          A.    No.

          15          Q.    Why were you uncomfortable; because you

          16     deleted E-mails and it related to a subject that

          17     you were sitting on a panel?

          18          A.    What I said to you in my answer

          19     previously was that what I wrote is not what I

          20     meant.

          21          Q.    You're a lawyer, Ms. Mazza.  The trade

          22     of a lawyer is the usage of words.  I want to

          23     know, what did you mean when you used the words, I

          24     am somewhat uncomfortable with this information

          25     being recoverable?  At that time, what did you
 

                                                                  63

           1                            Mazza

           2     mean?

           3                MR. MARKS:  Objection to the form.

           4          Q.    What did you mean?

           5          A.    What I meant was, I want to know if

           6     Mr. Murphy was asking to see my deleted E-mails.

           7     That is what I meant.

You Can't Trust NYCERS.

Denial of a Request to Correct an Error

I just received a copy of a letter Karen Mazza sent to a lawyer trying to help a former Transit Authority worker who qualified for a NYCERS disability retirement in 1990. Mazza is the director of the Legal Division at NYCERS and is paid $175,000 per year.

This letter is a response to a request by the lawyer asking NYCERS to correct an error that NYCERS had made in 1990 in processing the member’s disability applications. (as per S.13-182 of the NYC Admin. Code). NYCERS had failed to process his Tier-3 S.507 disability application. The agency only processed his Tier-3 S.506 application and granted him this smaller disability benefit.

This processing error had come to light in 2013 in conjunction with NYCERS’s recent discovery of its errors, over a 30 year period, in processing Workers Compensation offsets for certain disability benefits and its harsh campaign to correct those errors. This member is one of the effected retirees. See Note #1 below.

While this letter appears to be innocuous and straight forward on its face, it is not. In the third paragraph of her letter Mazza states in connection with the member’s Tier-4 S.605 disability application:

“Since the Medical Board had already determined that his incident was not an accident he was not eligible to be considered under S.507 of the RSSL for accident disability”

This is a false statement.

The Medical Board in response to the member’s S.605 application determined only that the member was not disabled. Mazza provided no evidence to support her statement. The wording from the final medical report dated June 5, 1990 is as follows:

“The Medical Board, after reviewing all the documentation in the incident involved, the findings by Mr. XXX’s own physicians and the diagnostic tests performed , found insufficient objective medical evidence to substantiate Mr. XXX’s claim of disability and recommendation was made that he was referred to Dr. XXX, neurologist for neurological exam.

Dr. XXX examined Mr. XXX on 4/12/90 and reviewed the history and noted the complaints of the applicant. As a result of his neurologic examination, Dr. XXX came to the conclusion that there was no objective evidence of neurologic disorder in Mr. XXX at that time.

The Medical Board, after careful consideration of all the facets of this case and the report of Dr. XXX, reaffirm its previous decision and recommends denial of the application for accident disability retirement.”

When the Medical Board finds that an applicant is not disabled, its job is done. Procedurally and logically, it does not address the issues of whether the "on the job" incident caused the disability or whether the incident is an accident. An “accident” has a legal definition created by a court decision.

In addition, while the Medical Board’s finding on disability is definitive, the Medical Board’s findings on causation and accident, when necessary, are only advisory. The NYCERS Board of Trustees is, by statute, the final arbiter of these two issues. See also Note #2 below.

In contrast to the S.605 benefit, the disability decision for the S.506 & S.507 disability benefits is determined by the member’s eligibility for primary social security disability benefits. This member was so eligible.

Like S.605, the S.507 benefit requires that the NYCERS Board of Trustees determine that an on the job incident caused the disability and that the incident was an accident. The trustees refer to a Medical Board recommendation when making their decision but are not bound by it. The member may or may not be able to clear that hurdle but he is entitled to try.

The S.506 benefit only requires 5 years of service in addition to the social security disability benefit. The member had 8 years of service. This is the benefit he was given by NYCERS and it began in 1986 when the social security award began.

After NYCERS denied his S.605 application, the member requested that his application be processed under Article 14 (Tier 3). NYCERS processed his S.506 application but not his S.507 application. Needless to say the S.507 benefit is significantly greater than the S.506 benefit.

I suspect that the medical division incorrectly assumed that the member’s S.605 denial was based on either the causation or the accident issues. The agency was under very tight budgetary constraints in 1990.

Benefit Difference Between S.506 and S.507

The benefit under S.506 is 33% times a three year average compensation minus two offsets, 50% of the social security benefit and 100% of any workers compensation award, plus the Tier-3 annual cost of living adjustment.

The S.507 benefit is the same as S.506 benefit except that the percentage is 60%, much higher than the 33% in S.506.

In 1991 NYCERS using a $35,426 three year average compensation computed the member’s S.506 benefit to be equal to $11,808. It was then reduced by $2,790 (50% of his social security benefit). The reduced benefit was $9,018/year. At the time NYCERS did not apply any workers compensation offset. This was a mistake. The benefit after the offset for the workers compensation award ($7,800/year) was $1,218/year, a very small amount.

If NYCERS had processed the member’s S.507 application and the trustees had found that the member had been disabled by an on the job accident, his annual benefit would have been $21,255. With the two offsets it would then have been $10,665. If he had been granted the S.507, then he actually has been underpaid since 1986.

Conclusion

Now NYCERS refuses to correct this error using lies to justify its denial. The retiree does not have the resources to mount a legal challenge. He has no recourse but wait for over 15 years while NYCERS extracts its money. What ever happened to the union representatives on the Board of Trustees. They had no trouble getting a disability benefit for the son of a DC-37 union official, Mark Shaplo who plead guilty to fixing a 1996 contract ratification vote.

What is the lesson learned here? You can not trust NYCERS. The senior management has a record of incompetence and corruption and it is the members and retirees who suffer.  

Note #1: Workers Compensation Offset

In December, 2012 NYCERS notified the member that the agency had discovered that it had failed to apply the workers compensation offset to his benefit in 1991. The WC award was $150/week, $7,800 a year starting in 1989.

As a result NYCERS claimed that the retiree was overpaid by $186,199 from March, 1989 to December, 2012. NYCERS provided no detailed spreadsheet outlining the overpayments. NYCERS also did not detail the repayment amounts or the repayment schedule. A quick calculation of the WC payment of $7,800/year for the period is equal to only $108,000.

NYCERS suspended the retiree’s pension as of January, 2013. It did not state specifically when the agency would restore his pension. The agency stated only that at some undetermined date in the future he would be reinstated when the debt was paid off.

There are also significant COLA payments attached to this benefit which impact the overpayment - repayment schedule.

While it is obvious NYCERS needs to take action to recoup an overpayment, this situation was caused by a NYCERS error and NYCERS should show some consideration to effected retirees.

Note #2: More Deception

While admitting in paragraph two of her letter that the Medical Board found the member not disabled, Mazza strangely adds the following sentence possibly hoping to confuse the reader into thinking that The Medical Board had decided that the incident had not caused the disability:

“They went on to find that he was on restricted duty at the time and the incident did not aggravate the non-line of duty injury”

This is not a finding that the incident did not cause the disability because there was no disability as far as the Medical Board was concerned. According to procedure there was also no mention about whether the incident was an accident in the Medical Board report. For the record restricted duty is no different than full duty with respect to being on the job.

There is also a bogus reference to the fact that the member was represented by counsel throughout the entire process. NYCERS did nor deny the member's S.507 application. They failed to process it. This is an issue about NYCERS making a mistake and fixing it as required by Section 13-182 of the NYC Admin. Code. Ask any disabled retiree with a workers compensation offset.

It always amazes me that I hired Mazza and gave her a second chance when she falsified her time sheets. I guess we all make mistakes. Too bad I can’t fix this one.

The Worker’s Compensation Nightmare Keeps on Coming.

On November 30, 2012 NYCERS sent an unsigned letter to a former subway conductor. NYCERS has been sending this disabled retiree $283.30 a month for the last 21 years.

The letter notified the retiree that 1) his benefit is subject to an offset of any Workers’ Compensation payment and 2) since he has been receiving $150 a week from the Workers’ Compensation Board that his pension will be suspended as of January, 2013. NYCERS provides no detail about how this Workers’ Compensation information came to light 21 years after the member retired. No statutory reference was given.

NYCERS will graciously continue to pay him a “nominal” amount so that he may retain his health insurance.

In addition NYCERS stated that since he has been receiving the $150/week Workers’ Compensation payment since 12/01/1991, his NYCERS disability benefit was and is equal to $0.00 per month.

While this can be argued to be legally correct, such a draconian result demands a close legal interpretation of the statute. This retiree contributed 3% of his salary to NYCERS for eight years before becoming disabled. This interpretation of the statute provides this member with nothing for the money he contributed. It is hard to conclude that this was the legislative intent.

The final thrust of the NYCERS letter is a claim by NYCERS against the retiree of a repayment of $99,355.18 for the monthly payment of $283.30 over the last 21 years. NYCERS states that it may take action to recoup the money. Of course, NYCERS offers the retiree the option of sending a check or money order payable to NYCERS for the full amount. It appears that the $99,355.18 includes all the cost of living adjustments (COLA) that the retiree received. I am almost certain that NYCERS does not have specific directions from the Law Department to deny COLA payments to such retirees. Of course NYCERS sent no calculations supporting the $99,355.18 amount.

Again, NYCERS graciously advises the retiree that if he has any questions he can call the pension payroll unit or visit customer service at Jay Street.

No one signed the letter.

I never cease to be amazed at how secretive, clumsy, insensitive and unprofessional NYCERS can be. This is especially true for an agency that has a budget that is free from the constraints that other city agencies have to work under.

Tier 6 - Disability Picture for NYC Police, Fire, Corrections, Sanitation, and Detective Investigators Members

Background

As of July 1, 2009 all new NYC police officers and fire fighters were covered by the Tier-3 pension benefit structure.

As of April 1, 2012 all new NYC police officers, fire fighters, correction officers, sanitation workers, and DA detective investigators are covered by the new Tier-6 pension benefit structure.

Tier 6 is an effort at pension benefit reform within New York State. It definitely cuts benefits. It is very expansive but I want to focus on one particular area, disability benefits for these Tier-6 workers.

With respect to these Tier 6 members, the new disability benefits are the old Tier 3 benefits put in place back in 1976, 37 years ago. The one difference is that these benefits are now based on compensation base equal to a five year average earnings as opposed to the old three year average.

The relevant sections of law in Tier 6/Tier 3 with respect to disability benefits are Sections 506 (Ordinary Disability) and 507 (Accident Disability) of the N.Y.S. Retirement &Social Security Law (RSSL).

As of 2009, only the NY Police Pension Fund (NYPPF) and the FDNY Pension Fund (FDNYPF) were involved with the Tier 3 throwback.

As of 2012, Tier 6/Tier 3 involves three pension systems, NYPPF, FDNYPF, and NYCERS. These three systems will have to resurrect the old Tier-3 procedures from the 1976 to 1983 time period. Of the three systems, only NYCERS administered Tier-3 benefits during that time. In 1976, the benefit structure for both NYPPF and FDNYPF remained in Tier 2.

In 1983, Tier 4 superseded Tier 3 state wide. One of the big reasons for the change over to Tier 4 was the administrative problems inherent in Tier 3, especially the Social Security coordination and its tie-in to disability determinations.

These lower Tier 6 disability benefit levels will reduce the number of members retiring for disability. The VSF benefit, for police, fire, and corrections, is only available to service retirees. This benefit along with the long term earnings limitations will push many members to continue working until their 22nd year even when they may qualify for a disability benefit. Members who are profoundly disabled, however, will have no choice but apply for whatever disability benefit they qualify for.

The FDNY will have a special management problem supervising two groups of employees, one with an accident disability benefit = 45% (new fire fighters) and another with a line of duty disability benefit = 75% for all EMS workers, even Tier 6 ones. This makes one think that there will definitely be future changes to this part of Tier 6.

Ordinary Disability Benefits (S.506)

The new Tier 6 ordinary disability benefit is equal to

1. The greater of 33&1/3% of the five year average FAS or 2% times years of service up to 30 years
2. Minus 50% of the primary SS disability benefit or at age 62, 50% of the primary SS retirement benefit (if ineligible for SS disability)
3. Minus 100% of any Workers Compensation (WC) payable
4. Plus full immediate escalation.

To be eligible the member must in active service and have at least 5 years of credited service. Continuous employment in active public service immediately prior to the date of membership in the appropriate retirement system shall also count towards the 5 year requirement. There is no age requirement for the ordinary disability benefit.

The member must be determined to by disabled by the Social Security Administration. If you are older than 65 or do not have a enough quarters to be eligible for SS disability, then the approppriate retirement system Medical Board will make the disability determination. The cause of the disability is not pertinent to granting the benefit.

Retirees receiving ordinary disability benefits are subject to post retirement income limitations. These limitations are the same as apply to the accident disability benefit. See below.

Note: Workers Compensation

NYC police officers, fire fighters, and sanitation workers are not covered by Workers Compensation. Therefore, there is no WC offset for their disability benefits.

Correction officers and DA detective investigations are, however, covered by the city's WC structure. This means there will be WC offsets to their disability benefits, if the member receives any WC payments.

It may be prudent for these members not to claim WC payments since the NYCERS benefit might be reduced to zero by the offset. This would put their city health insurance as retirees at risk. However the WC payments might be greater than the NYCERS benefit with or without the SS offset. The member needs to do some arithmetic to properly balance their benefit structure. I'm sure the relevant unions will provide advice.

A WC offset for an ordinary disability benefit is unusual and raises the issue of whether this benefit is exempt from federal income tax in the same way that accident disability benefits are. The NYC Law Department will have to resolve this issue.

Accident Disability Benefits (S.507)

The Tier-6 benefit is equal to

1. 50% of the five year average FAS
2. Minus 50% of the primary SS disability benefit or at age 62, 50% of the primary SS retirement benefit (if ineligible for SS disability)
3. Minus 100% of any Workers Compensation payable.
4. Plus immediate full escalation. See the escalation section below.

To be eligible the member must in active service. There is no two year filing limitation that existed in Tier-2. There is no service or age requirement for the accident disability benefit. It appears to me that police officers and fire fighters with 22 or more years of service are not eligible while NYCERS members are free of that limitation. This issue will not arise for many years and probably will be changed sometime in the future.

The member must be determined to by disabled either by the Social Security Administration or the appropriate pension Medical Board. In either case, the Medical Board must make a recommendation on whether the associated incident on the job caused the disability and the incident was an accident as per retirement system's legal definition of an accident. These causation and accident determinations are the same as in Tier-2.

The appropriate Board of Trustees makes the final determination on causation and accident. The final disability decision, however, rests with the Social Security Administration or the retirement system's Medical Board.

Members must waive any right to any statutory presumption (i.e. heart bill or lung bill) relating to the cause of the disability or eligibility for disability benefits. This does not apply to World Trade Center presumptions.

Retirees receiving accident disability benefits are subject to post retirement income limitations. See below.

Limitations on Income after Disability Retirement (S.507.d)

There are significant long term income limitations for disability retirees, both for accident and ordinary disability. I have included the exact wording from the statute (S.507.d) below because of the harshness of the restriction. If the retiree loses his/her SS disability benefit or engages in employment or business activity that would make him/her ineligible for SS disability benefits, then his/her retirement system disability benefits cease. This is not just a suspension. The only reprieve is being placed on a preferred eligible list.

S.507.d.

If a member shall cease to be eligible for primary social security benefits before attaining age sixty-five, or, if receipt of social security benefits is not a condition for disability benefits hereunder, shall engage in such employment or business activity as would render such member ineligible for social security disability benefits (had he or she otherwise been eligible), benefits hereunder shall cease.

Provided, however, if such member is otherwise eligible, the state civil service department or appropriate municipal commission shall place the name of such person, as a preferred eligible, on the appropriate eligible lists prepared by it for positions for which such person is stated to be qualified in a salary grade not exceeding that from which such person retired.

In such event, disability benefits shall be continued for such member until such member first shall be offered a position in public service at such salary grade.

Escalation (S.510)

Escalation is designed to provide some protection from the negative effects of inflation over time. A Tier-6 member who retires for either disability benefit is eligible every April 1 for a percentage increase in his/her benefit based on the lesser of 3% or the consumer price index (all items- US city averages as per US Bureau of Labor Statistics) as of the previous December 31.

In the event of a decrease in the CPI, the benefit is decreased by the lesser of 3% or the CPI. The benefit will not decrease below the original benefit.

The CPI changes are cumulative and are brought forward each year. So in effect, there are two running escalation indexes, the all 3% index and the all CPI index.

Escalation becomes payable: 1) For eligible service or vested benefits on April 1 following the 25th anniversary date. The first year is prorated on monthly basis. 2) For accident and ordinary disability and death benefits on April 1st following the date the benefits start. Again the first year is prorated.

Social Security Offset (S.511)

Calculating this offset can get very complicated. But roughly speaking the amount is computed at the time that the member retires from the appropriate retirement system and not at the member’s 62nd birthdate. It does not include any private sector income in computing the Social Security benefit. Only wages from employers who participate in NYS public pension plans are used. All other wages are set to zero. The offset will not include any increases to the Social Security benefit which occur after the member's retirement date. The complexity of this offset is one of the prime reasons that New York State moved to Tier 4 (the SS offset was dropped completely along with automatic escalation) in 1983.

EMS Disability Retirees -- August 11, 2008 Letter to EMS Retirees Association

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.