The sections of the Retirement and Social Security which provide the eligibility requirements for disability retirement benefits require applicants to be permanently incapacitated for the performance of duty. It is clear under the pertinent statutory provisions and case law that the issue of permanent incapacity must be determined on the basis of the individual’s own actual duties.

In 1994, the Comptroller commissioned Buck Consultants, Inc. (“Buck”), to study and make recommendations with respect to the Retirement Systems’ disability retirement programs. This study involved analyses of the programs of many other public systems, and also involved analysis of testimony taken at public meetings conducted by Buck throughout the State. A report of the study’s findings and recommendations was issued by Buck on February 1, 1995. This report found that one of the most significant issues which emerged during the course of the public meetings is how the Retirement System should determine the issue of permanent incapacity with respect to disability retirement applicants (especially police officers and firefighters) who, although permanently disabled from their former full duties are, in fact, performing light duty, limited duty or restricted duty assignments as the case may be (“light duty cases”). Buck further found that some misunderstanding exists, among both participating employers and employees, regarding the System’s policy for determining the permanent incapacity issue in cases where the individual had been assigned to light, limited or restricted duties at the time of or prior to the filing of the disability retirement application.

The Buck report included a recommendation that the System promulgate a regulation which would set forth its policy for determining the permanent incapacity issue in light duty cases and clarify the significance of an applicant having performed overtime work in the months and years immediately preceding the filing of the disability retirement application. This part sets forth the rules and standards to be applied by the Retirement System with respect to determining the issue of permanent incapacity in such cases. This part also guides the employer with respect to providing the pertinent information regarding job requirements, in order to facilitate the Retirement System's attempts to apply such rules and standards.

For the purposes of this part, the term applicant shall mean a member of the New York State and Local Employees' Retirement System or the New York State and Local Police and Fire Retirement System who is the subject of an application for disability retirement filed with the Retirement System either by such member, the member’s employer or an individual legally authorized to file such application on behalf of the member.