Information for Tier 4 NYC Workers

Most employees of the City of New York are members of the New York City Employees’ Retirement System, or “NYCERS”. Most workers think of NYCERS in terms of their “Service Retirement”, when they have enough years of credited service and are the necessary age to retire from their positions. However, there is a special retirement benefit available to those that can no longer perform their full duty position as a result of an injury or illness. This “Disability Pension” is an economic life saver for many injured workers, allowing them to meet their financial obligations while facing the debilitating nature of their injury/illness. Read below for information concerning information on Tier 4 eligibility for New York City workers.

When is a Disability Retirement Available?
Disability Retirement is available to workers that that can no longer perform the full duties required of their specific title. This legal standard means that you must no longer be able to perform your job, it does not require that you be disabled from all jobs in the United States like Social Security Disability. If you, and your treating doctors, believe that your injury/illness will not allow you to return to your previous work an application for Disability Retirement should be filed.

When Should I file a Disability Retirement Application?
The Retirement & Social Security Law has various filing deadlines for disability retirement depending on the pension “Tier” the member has been assigned. Tiers are determined based on one’s original membership date with NYCERS. Although the law sets guidelines on the latest date a member can apply for a disability pension, the basic rule of thumb is that an injured worker should apply for a disability pension as soon as they and their physician determine that they are no longer able to return to their prior work, but not later than 6 months after an injured worker has been absent from work on an approved medical leave.
The need for early application in disability cases emanates from the New York State Civil Service Law (“CSL”). Section 71 of the CSL allows a municipality to “medically separate” (a nice phrase for “terminate”) an employee who has been out of work for 1 year due to a workers’ compensation injury/illness. Section 73 of the CSL allows for the medical separation of an employee when they have been out of work for that same 1 year period. This means, as soon as you miss one day of work due to an injury or illness the one year clock for return or termination begins to run. The NYCERS disability process generally takes approximately 6 months to fully adjudicate a disability application and render a decision. Therefore, in order to avoid medical separation and possible interruption of medical insurance coverage and other benefits, it is in a workers’ best interest to file as early as possible.

Statute of Limitations for filing Disability Pension Applications Tier 4 Members:
Within 3 Mons of the date a member was last paid on payroll; OR
Within 12 Mons of when the member received notification that their employment has been terminated as long as the member was on an employer approved medical leave of absence immediately prior to termination.

Do I need a Specific amount of Credited Service Time with NYCERS in order to apply for a Disability Retirement?
No, any member can apply for a disability retirement benefit if they are permanently incapacitated from the full duties of their employment. However, if a member has less than 10 years of Credited Service with NYCERS the member must establish that their injury directly results from a “legal accident.” A legal accident varies greatly from what we would generally call an “accident” in ordinary conversation and adds greater burden in establishing entitlement to this benefit.

How Does NYCERS determine if I am Disabled?
NYCERS has established a “Medical Board” to hear each application for disability retirement. This three doctor panel is charged with reviewing all the evidence a member submits in support of their claim for benefits and is also required to psychically examine the injured/ill worker. Once examined, the Medical Board will “recommend” to the NYCERS governing body, the Board of Trustees, whether to approve or deny your claim. By law the Board of Trustees cannot overturn the Medical Boards determination regarding a members fitness for duty, but must make its own determination on issues regarding the “accidental” nature of your injury and “causal relationship”, that is, whether your injury was caused by the specific accident alleged in the application.

If I am Approved, What Benefit Will I Receive from NYCERS?
Your benefit amount depends on your Tier and the benefit a member applies for.
The benefits amounts are:
Tier 4 Members Applying for Article 15, Section 605 Benefits:
1/3 of a Members Final Average Salary; OR
1/60th of a Members Final Average Salary multiplied by the Members Credited Service Time

NOTE – Tier 4 members DO NOT HAVE ¾’s Disability Pensions. Only NYC uniformed personnel have such a benefit.

If I am Approved, Will I Receive Medical Benefits from NYCERS?
Technically, the answer is No because NYCERS does not administer medical benefit coverage. Instead, medical benefit coverage is a contractual issue. Rest assured, almost all contracts today treat disability retirees the same way as “service retirees” and provide the same medical coverage in both situations.

Can I Work in Another Job as a Disability Retirement Recipient?
Yes, however you will be subject to income limitations which change annually. Whenever you decide to take new employment you should contact NYCERS to find out the current income limitation.

Can I Receive a Disability Pension, Social Security Disability and NYS Workers Compensation together, without offset?
Yes, Tier 4 Disability Pension benefits are not offset by the receipt of either SSD or NYS Workers’ Compensation and a member can receive all 3 benefits payments under the law.

McIntyre, Donohue, Accardi, Salmonson & Riordan, LLP Successfully Appeals Case for Injured Correction Officer

McIntyre, Donohue, Accardi, Salmonson & Riordan, LLP (MDASR) has announced that the firm successfully won an appeal on behalf of a Nassau County correction officer who was initially denied disability retirement benefits, despite being injured on the job, which forced him to retire.

On March 14, 2011, Ronald DeMaio assisted in breaking up a fight between an inmate and a fellow correction officer who was searching the inmate for contraband. Officer DeMaio subsequently escorted the inmate down a stairwell by holding the inmate’s arm. The inmate pulled away from Officer DeMaio, causing him to injure his lower back.

When Officer DeMaio applied for disability, he was denied and requested a hearing and a redetermination. The Hearing Officer upheld the initial decision, stating that Officer DeMaio failed to meet his burden of proof because he had failed to show that the inmate intentionally caused his injury. Officer DeMaio then retained MDASR to represent him on an Article 78 appeal. The firm argued that the Hearing Officer’s determination misstated the applicable legal standard and that the firm’s client needed to prove the injuries came from “any act of an inmate,” but the hearing officer wrongfully found that Officer DeMaio needed to prove that the inmate deliberately caused him harm.

On March 31, 2016, the New York State Supreme Court, Appellate Division, Third Judicial Department, ruled that the hearing officer did not properly apply the legal standard for review during the hearing process and committed an error of law in her determination.

Sean Riordan, a Partner with the firm, represented Officer DeMaio during the appeal. “Despite what many of the Hearing Officers have recently ruled, the ‘act of an inmate’ that causes the correction officer’s injury does not need to be an intentional act. These rulings are no longer valid,” Mr. Riordan said.

The Appellate Division also found that the Hearing Officer failed to provide the proper standard of review, finding that a redetermination is a de novo review, not a substantial evidence review. Mr. Riordan said the Hearing Officer did not take into account all of the evidence before making the determination. “In pension hearings, the Hearing Officer must review the totality of the evidence before it and make a new decision, not merely adjudicate whether the prior application decision was supported by substantial evidence,” he said. “While this procedural ruling appears to be legal semantics, Hearing Officers frequently justify denials on the basis that the Comptroller’s initial determination is supported by substantial evidence without giving the CO a full and fair review of the evidence. This is now also invalid reasoning.”

For more information, call (631) 665-0609 or visit www.licomplaw.com.

* A copy of the decision is attached.

Attorney Advertising. Prior results do not guarantee a similar outcome.

Lack of Inflation to Affect Social Security Benefits for 2016

Recipients of social security benefits will not receive a cost-of-living adjustment (COLA) in 2016 due to lack of inflation. Many blame a correlation between low gas prices and the inflation rate concerning the absence of a COLA for next year. The COLA is based on the Consumer Price Index for Urban Wage Earners and Clerical Workers which is computed in accordance with statistics provided by the Bureau of Labor which measures price changes in items such as food, clothing, housing, transportation, etc. Fuel prices have dropped by 23% since last year, lowering inflation. This is only the third time in forty years that there has not been an increase, including in 2010 and 2011.

The COLA affects 70 million Americans, with Social Security benefits being provided to 1/5th of the population including Social Security Disability (SSD). The beneficiaries include federal retirees, disabled workers, their spouses and children, and disabled veterans. Additionally, 8 million people receive Supplemental Security Income (SSI)- a financial needs-based program for the disabled. This program would also be affected as the program recipients will also see no COLA increase.

While benefits will not be increasing this year, SSI/SSD are important benefits to disabled workers. If you suffer from pain so severe that you cannot work, and have medical evidence attesting to your condition, you may be entitled to receive Social Security Disability Insurance.  Contact an attorney who is experienced in helping clients obtain the benefits they deserve.  Call The Law Offices of McIntyre, Donohue, Accardi, Salmonson, & Riordan, LLP at (866)557-7500.

Three New Bills Aimed at Improving SSDI Program

Two senators have recently introduced legislation that is aimed at improving the quality of the Social Security Disability Insurance Program. As it is expected that the reserve fund will be depleted by next year, the purpose of these bills is to ensure that funds are being used legitimately. A 20% cut is currently scheduled for next year which would adversely affect the 11 million Americans rely on SSDI. If passed, the proposed legislation could positively reform the current state of the program.

The intent of the Promoting Opportunity for Disability Benefit Applicants Act grants the Social Security Administration the power to provide those who were denied SSDI benefits with information on other support services. As the application process typically takes 100 or more days, workers are forced to wait for a decision regarding benefits when they could be re-entering the workforce. The goal of the Act is to ultimately help workers successfully re-enter the workforce and avoid the application process cycle.

Another bill introduced, The Improving the Quality of Disability Decisions Act of 2015, requires the Social Security Administration to review decisions made by Administrative Law judges in order to guarantee that they are complying with the law, as well as SSA’s policies. While the bill does not have a direct effect on spending, it does ensure uniformity in the consistency and quality of decisions that are made.

The third bill, The Disability Fraud Reduction and Unethical Deception (FRAUD) Prevention Act, imposes monetary penalties on those who attempt to defraud social security. The bill expands upon Social Security’s ability to protect the taxpayer’s money by exposing and punishing fraudulent activity. In addition to increasing the monetary penalty of a misstatement to $7,500, those who defraud could also incur a felony conviction and a sentence of ten years in prison.

Especially considering the pending legislation, if you are unable to work due to illness, mental or physical disability, contact an attorney who is experienced in obtaining Social Security benefits for their clients. Call The Law Offices of McIntyre, Donohue, Accardi, Salmonson, & Riordan, LLP at (866)557-7500.

Proposed Legislation Would Allow Uniformed Workers 75% of Their Salary for Retiring on Disability

If passed, de Blasio’s amended disability pension legislation could be a triumph for disabled workers. The changes made to the original bill would allow three-quarter pensions for uniformed workers hired after 2009 retiring on disability, as well as workers who suffered severe injuries on the job. The original proposed plan gave uniformed workers only 50% of their salaries and was met with backlash from critics who said that 50% was too low for workers who risk their lives on a daily basis to perform their duties.

The proposed changes to the bill also leveled the field by giving newer hires the same disability benefits as those who were hired prior to 2009. Under the original bill, uniformed workers hired post 2009 would have been forced to live on $27 a day if they were injured in the line of duty. Uniformed workers covered under the proposed bill include sanitation workers and corrections officers, as well as police officers and firemen. However, in order to receive the disability benefits, workers would have to qualify for social security first, which has also been a source of contention for union advocates backing the NYPD and NYFD.

It is estimated that the 75% pension plans would cost the city $342 million between 2015 and 2019. De Blasio’s original disability pension plan was calculated to cost the city $47 million.

Uniformed workers are subjected to physical harm daily in the workplace, and risk their lives for the public. In addition, due to the conditions of their employment, they face a number of work related health conditions such as the risk of developing various cancers, stress, sleep deprivation related conditions, depression issues, and heart attacks. According to statistics, firefighters have significantly higher rates of testicular cancer, non-Hodgkin’s lymphoma, prostate cancer, and multiple myeloma, than the general population. Additionally, due to hectic work schedules and stress, and other factors affecting metabolism, studies have shown that police officers are 8% more likely to develop obesity issues than their civilian counterparts.

If you have been injured during the course of your employment, contact an attorney who is experienced in dealing with disability benefits. Contact an attorney who is experienced in helping clients obtain the benefits they deserve. Call The Law Offices of McIntyre, Donohue, Accardi, Salmonson, & Riordan, LLP at (866)557-7500.

Recent Survey Indicates Large Percentage of Fibromyalgia Patients Not Receiving Disability Benefits

Anyone with fibromyalgia knows how debilitating the condition is, and how difficult it is to perform job functions that you may have been able to previously. While the condition affects 5 million adults, only 25 percent are receiving disability benefits. A recent survey conducted by ProHealth.com has found that out of the 316 participants, 60% had fibromyalgia. 68% of the participants were not receiving disability benefits at all. The two most popular responses as to why the survey participants were not receiving disability were that they either felt guilty asking for it, or could not afford to be out of work for two years while awaiting approval. For those who did make claims, 75% had not involved a lawyer.

Even for those who apply for social security disability for fibromyalgia, the outcome is uncertain. The Social Security Administration issued new standards in 2012 to determine disability eligibility based on fibromyalgia symptoms. Previous to the new guidelines, a fibromyalgia claim was not necessarily viable. In determining the eligibility for a claim, the Social Security Administration will look at whether:

• There is at least a 3 month history of widespread pain
• At least 11 of the 18 tender points are found on examination
• Evidence from other disorders were excluded

The SSA also requires medical documentation for a period of 12 months prior to the application date. Documents should include medical evaluations from a physician, and possibly a psychologist. The SSA will also take into consideration evidence of a person’s day to day functioning as reflected by the statements provided by friends, neighbors, clergy, past employers, counselors, or teachers. The SSA will also have their personnel evaluate you in a multiple step process considering:

• Work history
• Severity of symptoms
• Whether the impairments meet medical criteria
• Whether you are capable of performing past work
If you are capable of doing past work, then you do not qualif
y for disability. If you are denied your claim, you may appeal. Many people have found more success with the appeals process.

Navigating through the Social Security Disability system is often frustrating and confusing. If you are experiencing the debilitating pain of fibromyalgia and can no longer work, it is best to contact an attorney who is experienced in handling such claims. Call The Law Offices of McIntyre, Donohue, Accardi, Salmonson, & Riordan, LLP at (866)557-7500.

Executive Seeks Fund Reallocation to Address Social Security Disability

The United States Social Security Disability Insurance program, which provides benefits to over 11 million Americans, could be cut by nearly 20 percent. According to reports from the Social Security Administration Board of Trustees released in July 2014, the Social Security trust fund, which finances the federal program, is projected to be depleted by the end of 2016.

To address potential shortfalls in the past, Congress has reallocated payroll taxes from Social Security’s Old Age and Survivors Insurance fund to the disability trust. Similarly, while recognizing the need for a congressionally crafted long-term solution, the White House has proposed reallocating payroll taxes from the social security retirement fund to the social security disability trust fund to prevent the looming depletion.

Specifically, the White House’s proposal would shift $330 billion from retirement accounts over the next five years. However, according to the White House, the proposed reallocation will not affect the overall health of the retirement and disability trust funds on a combined basis. It is important to note that it is still unclear whether such measures will be adopted.

If you or a loved one have any questions regarding your Workers’ Compensation, social security, or New York State disability benefits, contact our experienced attorneys at McIntyre, Donohue, Accardi, Salmonson & Riordan, LLP. For a consultation, call (866)557-7500.

New York State Comptroller Announces Decrease in Pension Contribution Rates

The New York State Comptroller recently announced that the contribution rates paid by state and local governments towards New York’s pension funds will decrease.

According to the Comptroller’s office the average rate of contribution will decrease to 18.2% for most public workers from 20.1%, the comptroller said. For police and firefighters, the employer rate will drop to 24.7% of payroll from 27.6%.

The decrease in contribution rates is expected to have immediate impact on local governments outside New York City. In New York City, pension contributions will likely remain the same thanks to the city’s separate pension system. In recent years, localities and school districts have faced increases in their pension cost burden, partly due to the projected costs from a boom in retirees. Now, however, the rate reduction announcement comes as the state’s main pension fund reached a record high of $180.7 billion.

Thus, according to State Comptroller Thomas Di Napoli, the healthy state of the fund means local taxpayers won’t have to contribute as much. This is due in part to recent investment gains, which has increased the state’s pension fund to 92.2% from 88.7%.

Though New York’s pension fund is regarded as one of the best-funded in the country, opponents question the fund’s long term outlook. Indeed, skeptics argue that the fund assets, being largely comprised of various investments, presents a high risk for a high reward.

For additional information about state pension information and how it may affect you, please visit the state comptroller’s website. Additionally, if you or a loved one have any questions regarding your workers benefits, social security, or disability benefits contact our experienced attorneys at The Law Offices of McIntyre, Donohue, Accardi, Salmonson, & Riordan, LLP. Call (866) 557-7500 for a consultation.

NY Senator Introduces Bill to Help Alleviate Financial Burden on Americans with Disabilities

Senator Charles Schumer has recently introduced a new piece of legislation to the United States Senate. The proposed bill aims to assist New Yorkers with disabilities and their families in their preparations for the future. The bill, titled, Achieving a Better Life Experience Act (ABLE) creates a tax-advantage savings account for people with disabilities.

According to reports, the bill would authorize the creation of a savings account similar to an Individual Retirement Account. The saving account would allow parents to put away more money for their disabled child, without paying taxes on those contributions. Furthermore, the deposits would not put them over a threshold for what they stand to receive for social security disability.

Individuals that have been diagnosed with a mental or physical disability can create an account. Those individual’s beneficiaries can also establish an account. Anyone would be able contribute to the account. More importantly, the funds would be able to be withdrawn tax-free and used for expenses such as education, medicine, and transportation.
According to the CDC, there are more than 43,000 people with disabilities in western New York alone, which includes but is not limited to Autism, Down Syndrome, and Fragile-X.

In short, Senator Schumer’s bill seeks to alleviate the difficult proposition which many families of disabled Americans face: Choosing between paying for daily living expenses and saving for their child’s future.

For more information on ABLE or for any information on Social Security disability, contact an experienced social security disability attorney at The Law Offices of McIntyre, Donohue, Accardi, Salmonson, & Riordan, LLP. Our firm handles social security and disability claims throughout the five boroughs of New York City, including Manhattan, Brooklyn, Queens, the Bronx, and Staten Island, in addition to both Nassau and Suffolk Counties on Long Island. For more information please call (866)-557-7500 or click here to speak with our office.