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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.

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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.

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