If you worked in the public sector (e.g., public school district or state, county, city or town government) at the time you became disabled, you might be able to collect disability pension benefits from one of several retirement systems in the State of New York. Three are statewide pension systems (Teachers; Police & Fire; State & Local Government). We will refer to these generally as NYSRS (New York State Retirement System) disability pension benefits.

Who is eligible to receive NYSRS disability pension benefits?

Your eligibility depends on several factors including when you joined the NYSRS and the number of years of employment you have completed. Currently, NYSRS members fall into one of several levels of participation called “tiers.” For example, Tier I participants have been members of NYSRS longest and have the best benefits. Tier VI participants have been members of the NYSRS for a shorter time and have benefits less valuable than Tier I participants.

How do I qualify for NYSRS disability pension benefits?

There are different types of disability pension benefits. They include ordinary (non-work related), performance of duty and accidental disability pension benefits. You may NOT be eligible to apply for or otherwise collect each different type of disability pension benefit.

To qualify for ordinary disability pension benefits, you have to prove that you are “permanently incapacitated” from performing your particular job AND you must have ten (10) or more years of credited pension service.

To qualify for performance of duty disability pension benefits, you have to prove that you are “physically or mentally incapacitated for performance of gainful employment as the natural and proximate result of an accident not caused by [your] own willful negligence sustained in the performance of [your] duties.”

It is VERY difficult to qualify for an accidental disability pension benefit under the language of the relevant statutes and judicial interpretations of that language. The law does not define “accident” as we commonly think of the term.

How much is the NYSRS disability pension benefit?

The amount of your benefit depends on several factors including your Tier of participation, the amount of money you have earned in public service, the type of disability pension you collect and whether you want your loved ones to collect your disability pension benefit on your death. For example, a performance of duty disability pension benefit is usually greater than an ordinary disability pension benefit for participants in the same Tier.

Each year, you should receive a statement from the New York State Comptroller’s Office which provides some helpful information about your anticipated pension benefits. You can get more precise benefit information by meeting with a NYSRS representative. To schedule such a meeting, visit: http://www.osc.state.ny.us/retire/consultation_site_offices/index.php

When do I have to apply?

As a general rule, you must apply while you are “in service.” This means that you are being paid on the payroll of the public employer or you are on an authorized medical leave of absence. For some types of benefits, your application is timely if you file it within a certain period of time after you were last on the payroll or your employment was terminated.

Where can I get the application forms and other helpful information?

NYSRS has a helpful website (http://www.osc.state.ny.us/retire/) with forms (https://www.osc.state.ny.us/retire/forms/index.php) and helpful publications (https://www.osc.state.ny.us/retire/publications/index.php).

Should I list ALL my problems when I apply for NYSRS disability pension benefits?

ABSOLUTELY. If you fail to list an impairment on your application, you may be barred from having the condition considered as part of the reason that you are unable to work.

Will I have to see a NYSRS doctor?

As a general rule, you may be examined by one or more doctors who are paid by NYSRS. This doctor will review your medical records, examine you and give an opinion about any of the issues in your NYSRS case including whether you are permanently incapacitated from performing your job in the public sector.

Who decides if I am entitled to NYSRS disability pension benefits?

A Medical Board of the New York State Comptroller’s office initially decides whether you are eligible for NYSRS disability pension benefits. If they deny your application, you have a right to challenge that denial by appearing before an independent Hearing Officer.

What do I have to do to request a hearing? How long do I have?

If your application is denied by the Medical Board, you can request a hearing by making a written request to NYSRS. When you receive notice that your initial application has been denied, you will be advised how to request a hearing. You must request a hearing within four months from the date of the determination which denied your application.

Who presides at the hearing?

The Hearing Officer presides at the hearing and is ultimately responsible for deciding whether you are entitled to NYSRS disability pension benefits. Many Hearing Officers are retired Judges who served in various City and State Courts.

How can I prove my case?

You will testify about your physical and mental problems and how they prevent you from performing your job in the public sector. We also are required to offer medical evidence about your physical and mental conditions.

Do I have to pay a doctor to testify on my behalf?

We can offer medical records and NOT present live testimony. This is a less expensive option, however, it is usually less effective particularly if one or more of your treating doctors will testify strongly that you are permanently incapacitated from working.

We recommend that you discuss with your treating physicians whether they were willing to testify on your behalf and, if so, how much they would charge you for their testimony.

How much time will you need from my doctor?

NYSRS cases are LESS adversarial than personal injury litigation. In our experience, no more than four hours is needed from any physician who testifies. This generally represents: (1) one hour to review your file; (2) one hour to meet with us to prepare for the testimony; and (3) two hours to review your file again, travel to the hearing, testify and travel back to their office. In Rochester, most NYSRS hearings are held at Rochester City Hall. We handle NYSRS cases throughout upstate New York.

Do witnesses testify against me?

NYSRS may call to testify any of the doctors who examined you on their behalf. Depending on the disputed issues, they may call other witnesses too.

When does the Hearing Officer issue his/her decision?

After all the witnesses have testified, the Hearing Officer generally requires written arguments in support of your position that you are entitled to NYSRS disability pension benefits. The written arguments are submitted within a deadline set by the Hearing Officer.

Why should I hire a lawyer to represent me?

If you are denied NYSRS disability pension benefits, we believe that you should hire an experienced lawyer to assist you. An experienced lawyer will answer your many questions about the process, will protect your rights, will secure relevant medical and employment records, will develop a viable legal theory and will prepare you thoroughly for your hearing.

Thereafter, the lawyer will deal with many issues that can arise after a hearing, including whether you are collecting the appropriate amount of money.

NYSRS law is very complex. Proper interpretation requires knowledge in several areas other than the law. To illustrate, one must be familiar with medicine, medical terminology and the description and physical demands of various jobs. An experienced lawyer will know how to cross examine a physician who examined you on behalf of NYSRS.

What do attorneys charge for their services?

Some attorneys are willing to represent you on a contingent fee basis. This means that there is no fee owed to the attorney if the Hearing Officer denies your application.

If your application is successful, the usual contingent fee is thirty-three and one-third percent (33-1/3%) of the GROSS lump sum of benefit that is paid to you.

We are prohibited by law from paying out-of-pocket expenses incurred to prosecute your claim. These expenses usually consist of copying costs, postage and payment to doctors for medical reports. You will be responsible for payment of these expenses regardless of whether your claim is successful. In our experience, most clients incur less than $200 in expenses. The single largest expense is the cost of medical records that we secure for your case. As you may know, doctors are permitted by law to charge us .75 for every page of medical records that they provide to us.

NYSRS does NOT make direct payment to the attorney for any fee earned. Thus, the law firm has to be confident that his/her client is trustworthy and will pay the fee when they receive their lump sum of back benefits.

A Final Thought

We know that this process is difficult and confusing. We welcome the opportunity to answer your questions.

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