Discontinuing a disability retirement allowance

Discontinuing a disability retirement allowance

Inquiry from a reader

From time to time a reader will submit a question to the editor of NYPPL. One query recently submitted concerned the authority of the New York State Employees’ Retirement System to discontinue an individual’s disability retirement allowance once such an allowance has been approved for the individual by the System.

The controlling laws, rules and regulations for both the New York Employees’ Retirement System and the New York State Policemen's and Firemen's Retirement System provide for the discontinuation of an individual’s disability retirement allowance under certain circumstances.

With respect to the New York Employees’ Retirement System, subdivision a of §102 of the Retirement and Social Security Law provides, in relevant part, as follows:

Subdivision a. Once each year following the retirement of a member on a disability allowance, the comptroller may, and, upon the beneficiary's application, shall require such disability beneficiary to undergo a medical examination.

If the individual refuses to submit to a medical examination required by the Comptroller, the pension portion of the individual’s retirement allowance, including the “pension-providing-for-increased-take-home-pay,” is to be discontinued. Should the individual continuously refuse to submit to such a medical examination for twelve months, the individual forfeits his or her  pension benefit.

It should be noted that case law suggests that once a pension benefit is forfeited it cannot be reinstated even if the individual subsequently satisfies the condition or requirement that resulted in such forfeiture.

Further, subdivision b of §102 provides, in relevant part, that “The pension, including the pension-providing-for-increased-take- home-pay, of a disability beneficiary shall be reduced in the event that any such disability beneficiary is engaged in a gainful occupation paying more than the difference between his [or her] retirement allowance, as it would be without optional modification and if not reduced by the actuarial equivalent of any outstanding loan and if not increased by the actuarial equivalent of any additional contributions, and his [or her] final salary.” The adjustment is made so that the individual’s annuity and the amount so earnable by the individual is equal the individual’s final salary. If the individual’s earning capacity thereafter changes, the amount of the pension payable may be further adjusted.

In addition, subdivision c of §102, in pertinent part, provides that “In the event that the comptroller shall determine that a disability beneficiary is able to engage in a gainful occupation,” if the individual “so requires” the Comptroller is to certify the name of the individual to the State Civil Service Department or appropriate municipal civil service commission.

The State Civil Service Department or such municipal commission is to then place the individual’s name, “as a preferred eligible,” on the appropriate eligible lists prepared by it for positions for which such individual is qualified and at a salary grade not exceeding that from which he or she was last retired. Adjustments to the individual’s pension benefit will be made so that his or her total compensation shall not exceed his or her final salary. Further, the individual is not eligible for membership in the retirement system as long as he or she receives any pension, including the pension providing for increased take home pay.

Finally, in the event that a “disability beneficiary” is restored to active service of an employer at a salary equal to or in excess of his or her final salary, his or her retirement allowance is discontinued in its entirety [see RSSL §102.d].

With respect to members of the New York State Policemen's and Firemen's Retirement System receiving disability retirement benefits, §402 of the Retirement and Social Security Law tracks the provisions of §102 of the Retirement and Social Security Law including a provision providing that “… a retiree of any New York state police or fire retirement system on a disability allowance who returns to gainful employment as an elected public official shall continue to receive the full amount of his or her retirement allowance, including the pension-providing-for-increased-take-home-pay” [See RSSL §402.f-1].

The requirements of these several provisions of law are reflected in Parts 336 and 337 of the Rules of the State Comptroller [2 NYCRR 336 and 2 NYCRR 337] and these Parts are set out below:

PART 336. DISABILITY RETIREMENT FOR MEMBERS OF THE NEW YORK STATE AND LOCAL EMPLOYEES' RETIREMENT SYSTEM UNDER ARTICLE 14 OF THE RETIREMENT AND SOCIAL SECURITY LAW

[Current through February 28, 2011]

Section 336.5. Recovery of disability beneficiaries.

(a) The Comptroller may, once each year following the retirement of a member on a disability allowance, and upon the beneficiary's application shall, require such disability beneficiary to undergo a medical examination. No such examination may be required until one year following the final determination granting disability retirement. Such examination shall be made at a place mutually agreed upon by the Comptroller and such beneficiary. In the event that any such disability beneficiary shall refuse to submit to a medical examination, the retirement allowance shall be discontinued until the member submits to a medical examination. If such refusal shall continue for one year, all pension rights shall be forfeited.

(b) Following such examination, or examinations, the Comptroller shall render a determination based upon the report of the medical board. Where the Comptroller determines that a beneficiary who has retired from a competitive class position is no longer incapacitated for the performance of gainful employment, the Comptroller shall certify to the applicable civil service department or commission, that the beneficiary is a preferred eligible to be placed upon the appropriate eligible list or lists, if any. Disability payments shall continue until such time as the beneficiary is first offered a position in public service at a salary grade equal to or exceeding that of the position from which the beneficiary had retired.

(c) In the event that a beneficiary had not retired from a competitive class position, or in the event that there exists no eligible list which encompasses the competitive class position from which he or she had retired, disability payments shall cease one calendar year from the date of the Comptroller's redetermination, and the beneficiary shall, if he or she had been vested at the time of retirement, be restored to membership in the New York State Employee's Retirement System.

2 NYCRR 336.6 provides as follows:

(a) The retirement allowance of a disability beneficiary shall be reduced in the event that any such disability beneficiary is employed in an occupation paying more than the difference between his retirement allowance, as it would be without optional modification, and the final salary. The retirement allowance shall be adjusted to a sum which, when added to the amount so earnable, shall equal the final salary. If the earnings subsequently change, the retirement allowance shall be adjusted so that the sum of retirement allowance when added to the amounts earned shall not exceed his final salary. The reduction shall be from the amount that the allowance would have been without optional modification. The retirement allowance of a disability beneficiary shall not be reduced after he or she has attained the applicable mandatory retirement age, or shall have attained the age and the date such beneficiary would have been eligible for service retirement under applicable law had he or she remained in continuous service from the date of retirement. For the purposes of this section, applicable law shall mean the plan and/or provision under which the member was enrolled on the date the disability retirement became effective.

(b) In the event that a disability beneficiary is restored to active service of an employer, at a salary equal to or in excess of his final salary, his retirement allowance shall cease. Thereafter, such person shall contribute to the retirement system in the same manner and at the same rate that he paid prior to his disability retirement. The total service which was credited at the time of  such retirement shall be credited to the restored individual. Upon subsequent retirement, additional service earned by him subsequent to his last restoration to membership will be credited.

(c) In the event that a disability beneficiary is restored to active public service at a salary less than his final salary but equal to or in excess of the current minimum salary for the position from which he was last retired for disability, such person, if he or she so elects, shall again become a member of the retirement system and the retirement allowance shall cease. If such an election is filed with the Comptroller, such individual shall contribute to the retirement system in the same manner and at the same rate as was paid prior to disability retirement. The total service which  was credited at the time of such retirement shall be credited to the restored individual. Upon his subsequent retirement, additional service earned subsequent to the last restoration to membership will be credited.

PART 337. DISABILITY RETIREMENT FOR MEMBERS OF THE NEW YORK STATE AND LOCAL EMPLOYEES' RETIREMENT SYSTEM UNDER ARTICLE 15 OF THE RETIREMENT AND SOCIAL SECURITY LAW

[Current through February 28, 2011]

Section 337.5. Recovery of disability beneficiaries.

(a) The Comptroller may, once each year following the retirement of a member on a disability allowance, and upon the beneficiary's application shall require such disability beneficiary to undergo a medical examination. No examination upon a beneficiary's application may be required until one year following the final determination granting disability retirement. Such examination shall be made at a place mutually agreed upon by the Comptroller and such beneficiary. In the event that any such disability beneficiary shall refuse to submit to a medical examination, the retirement allowance shall be discontinued until the member submits to a medical examination. If such refusal shall continue for one year, all pension rights shall be forfeited. The following indicia of a disability beneficiary's ability to return to the duties of the position from which such individual retired on account of disability, and any other reasonable indicia, shall be considered in determining whether it is appropriate to require the medical examination of a disability beneficiary (who has not requested such medical examination) for the purposes of this Part:

(1) medical evidence or records submitted to the Retirement System that indicates that the disability beneficiary may be able to perform the duties of the former position;

(2) videotape, photographs or other documentation or evidence submitted to the Retirement System which indicates that the disability beneficiary may be able to perform the duties of the former position;

(3) a determination by the Social Security Agency, Workers' Compensation Board or similar entity which indicates that the disability beneficiary may be able to perform the duties of the former position;

(4) documentation with respect to the disability beneficiary's earnings in a position or positions which may reasonably be construed as indicating that the disability beneficiary may be able to perform the duties of the former position.

(b) Following such examination, or examinations, the Comptroller shall render a determination based upon the report of the medical board. Where the Comptroller determines that a beneficiary who had retired from a competitive class position is no longer incapacitated for the performance of gainful employment, the Comptroller shall certify to the applicable civil service department or commission, that the beneficiary is a preferred eligible to be placed upon the appropriate eligible list or lists, if any exist. Disability payments shall continue until such time as the beneficiary is first offered a position in public service at a salary grade equal to or exceeding that of the position from which the beneficiary had retired.

(c) In the event that a beneficiary had not retired from a competitive class position, or in the event that there exists no eligible list which encompasses the competitive class position from which he or she had retired, disability payments shall cease one calendar year from the date of the Comptroller's redetermination, and the beneficiary shall, if he or she had been vested at the time of retirement, be restored to membership in the New York State Employees' Retirement System.

Section 337.6 provides as follows:

(a) The retirement allowance of a disability beneficiary shall be reduced in the event that any such disability beneficiary is employed in an occupation paying more than the difference between his retirement allowance, as it would be without optional modification, and the final salary. The retirement allowance shall be adjusted to a sum which, when added to the amount so earnable, shall equal the final salary. If the earnings subsequently change, the retirement allowance shall be adjusted so that the sum of retirement allowance when added to the amounts earned shall not exceed his final salary. The reduction shall be from the amount that the allowance would have been without optional modification. The retirement allowance of a disability beneficiary shall not be reduced after he or she has attained the applicable mandatory retirement age, or shall have attained the age and the date such beneficiary would have been eligible for service retirement under applicable law had he or she remained in continuous service from the date of retirement. For the purposes of this section, applicable law shall mean the plan and/or provision under which the member was enrolled on the date the disability retirement became effective.

(b) In the event that a disability beneficiary is restored to active service of an employer, at a salary equal to or in excess of his final salary, his retirement allowance shall cease. Thereafter, such person shall contribute to the retirement system in the same manner as and at the same rate that he paid prior to his disability retirement. The total service which was credited at the time of  such retirement shall be credited to the restored individual. Upon subsequent retirement, additional service earned by him subsequent to his last restoration to membership will be credited.

(c) In the event that a disability beneficiary is restored to active public service at a salary less than his final salary but equal to or in excess of the current minimum salary for the position from which he was last retired for disability, such person, if he or she so elects, shall again become a member of the retirement system and the retirement allowance shall cease. If such an election is filed with the Comptroller, such individual shall contribute to the retirement system in the same manner and at the same rate as was paid prior to disability retirement. The total service which  was credited at the time of such retirement shall be credited to the restored individual. Upon subsequent retirement, additional service earned subsequent to the last restoration to membership will be credited.

The Firefighter Rule

The Firefighter Rule

Cibelli v Episcopal Diocese of New York, NYS Supreme Court, Justice Liebowitz, Not selected for publication in the Official Reports

In the Cibelli case, New York State Supreme Court Justice Liebowitz outlines the common law “firefighters rule” and the impact of recent amendments to the General Municipal Law on the application of the common law rule.

In this case a firefighter sued to recover for personal injuries suffered while fighting a fire at a Diocese church. Justice Liebowitz ruled:

1. Cibelli's action was barred by the “firefighter rule;” and

2. Cibelli failed to establish a prima facie case under General Municipal Law Section 205-a, dealing with injuries resulting from fire code and other statutory violations.

As to the “firefighters rule,” the court explained:

It is established law in this State that a firefighter injured in the line of duty is not entitled to recover for the injuries sustained on the theory of common law negligence. In other words, firefighters are barred from recovering damages for injuries resulting from the special risks inherent in the duties they are called to perform.

The rationale for this rule is that firefighters and police officers are trained and compensated to confront dangers and are therefore precluded from recovering damages for the very situations that create a need for their services. Further, “the firefighter rule precludes a police officer or firefighter from recovering in tort when the performance of his or her duties increased the risk of the injury happening, and did not merely furnish the occasion for the injury.”

Therefore, when firefighters act in furtherance of their duties, which expose them to a heightened risk of sustaining injury, he or she may not recover damages for common law negligence.

Turning to the recent amendments to the General Municipal Law [GML], Justice Liebowitz commented that GML 205-a allows firefighters or representatives of deceased firefighters to sue where an injury “occurs directly or indirectly as a result of any neglect ... or negligence of any person or persons in failing to comply with the requirements of any statutes, ordinances, [or] rules ...” during the discharge of his or her duty.

According to the ruling, in enacting GML 205-a the Legislature intended to protect firefighters from additional dangers resulting from fire prevention code violations and other statutory violations, without the application of the assumption of risk doctrine. The problem here, said Justice Liebowitz, is that Cibelli failed to establish any facts or offer any proof that the Diocese violated any sections of the code.

Finally, Justice Liebowitz rejected Cibelli's argument that he could sue pursuant to General Obligations Law [GOL] Section 11-106. GOL 11-106, said the court, applies only when the “injury is proximately caused by the neglect, willful omission, or intention, willful or culpable conduct of any person or entity other than that ... firefighter's employer or co-employee.” Again Justice Liebowitz decided that Cibelli failed to establish that the Diocese's action or inaction was a proximate cause of his injury.

Working at home is not a reasonable accommodation for a disabled supervisor

Working at home is not a reasonable accommodation for a disabled supervisor

Kvorjak v State of Maine, CA1, 259 F.3d 48

Sometimes granting a disabled employee's request to work at home constitutes a reasonable accommodation of his or her disability. At other times such a request would not constitute a “reasonable accommodation” for the purposes of the Americans With Disabilities Act [ADA].

In the Kvorjak case the U.S. Circuit Court of Appeals, First Circuit, ruled that allowing an individual who is required to supervise other employees to work at home is not a reasonable accommodation for the purposes of the ADA.

Brian Kvorjak, a State of Maine Employment Claims Adjudicator, sued his former employer, the Maine Department of Labor, contending that its refusal to allow him to work at home as an accommodation of his disability violated the ADA.

Kvorjak is partially paralyzed as a result of spinal bifida. He was successfully employed by the State of Maine for twenty-two years, the last seven and one-half with the Department of Labor's Division of Unemployment Field Services. As the result of an economy move, Kvorjak's workstation was relocated and his ten-minute commute to work jumped to a ninety-minute trip.

Although Kvorjak was offered relocation expenses if he moved closer to his new work location, he refused to do so and he was laid off on June 18, 1997. Instead of relocating, Kvorjak had asked to be permitted to work out of his home.

In response to Kvorjak's allegation that the Department's rejection of his request to work at home violated federal and state disability laws, the State argued that it was not obliged to accommodate Kvorjak because his request to work at home stemmed not from his disability but from a personal preference against moving. It emphasized that Kvorjak could not, in any event, perform the essential functions of the claims adjudicator position from his home.

The federal district court concluded as a matter of law that Kvorjak could not perform “several important functions” of the position while working at home. The Circuit Court affirmed the lower court's ruling, pointing out that the individual has the burden of proposing an accommodation that would enable him or her to perform his or her job effectively and is, at least on the face of things, reasonable.

The ruling states that the record demonstrated that the essential functions of a claims adjudicator cannot be performed at an individual employee's home. As Kvorjak failed to introduce any evidence to rebut this, the Circuit Court said that he failed to meet his burden and, thus, granting summary judgment to the State was appropriate.