Current Pension Topics
Not Binding, But Sure Logical

By JOEL L. FRANK

Valerie Humphreys, Director of Communications and Customer Services for the New York City Employees Retirement System (NYCERS) writes:

"Dear Mr. Frank:

Your July 21, 2006 pension column inaccurately characterized the way in which NYCERS processes disability applications. As you know, NYCERS is required to administer pension benefits in accordance with NYC Administrative Code and/or New York State Retirement and Social Security Law (RSSL).

There are only two sections of the RSSL that allow NYCERS to automatically deem a member to be disabled if they have been found to be disabled by a Primary Social Security Award: RSSL 506 (ordinary disability) and 507 (accident disability). Both of these sections are applicable only to members who joined NYCERS on or after July 27, 1976 but before September 1, 1983.

These members are otherwise known as Tier 4 members with Tier 3 rights. Members applying under 507 are deemed disabled, but NYCERS's Medical Board still has to determine the causality. All other disability application determinations are made by the Medical Board.

The Medical Board makes recommendations based on the medical evidence submitted as well as its findings during the interview and examination. Please be advised that the findings of the Social Security Administration, the Workers' Compensation Board or any other administrative bodies are not binding upon the NYCERS's Medical Board.

You have the right to advocate for changes to existing pension law, but not in a manner that is less than forthright or gives your readers an inaccurate impression of NYCERS's authority regarding disability rulings."

Referring to that July 21 column, an electrician for the city Fire Department has been granted Social Security disability as well as a disability benefit from the Workers' Compensation Board. A third benefit program, the NYCERS, has denied the employee a disability pension. He was told to return to work as an electrician.

How could this be if the NYCERS Medical Board reviewed the same medical evidence as the doctors representing Social Security and the Workers' Compensation Board? How could one medical panel, representing the NYCERS, conclude that this employee is capable of returning to work as an electrician for the Fire Department when the two other panels of doctors conclude that not only is he not able to return to work as an electrician he is also not able to do other work?

Ms. Humphreys, what does NYCERS expect this employee to do? Return to work as an electrician when two independent medical panels tell him he is not able to? Return to work as an electrician when the Social Security doctors certified that he is totally disabled?

The definition of disability under Social Security is:

"The definition of disability under Social Security is different than other programs. Social Security pays only for total disability. No benefits are payable for partial disability or for short-term disability. Disability under Social Security is based on your inability to work. We consider you disabled under Social Security rules if you cannot do work that you did before and we decide that you cannot adjust to other work because of your medical condition(s). Your disability must also last or be expected to last for at least one year or to result in death."

The definition of disability under the NYCERS is:

"NYCERS' Medical Board determines a) that you are physically or mentally incapacitated to perform the duties of your job title, and b) that you were so incapacitated at the time you ceased performance of your duties."

This electrician is 50 years old with 18 years of service credit. Apparently NYCERS expects him to vest his pension now, at age 50, and wait 12 more years, until age 62, to collect. Give me a break!

If you are in the same cruel boat as this totally disabled electrician, please contact me.

Mr. Frank is a fee-only Retirement Financial Planner. He can be reached by telephone at (732) 536-9472, by fax at (732) 536-7373, or via e-mail at rollover@optonline.net.