Opinion 2003 - 5


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

PAID FIREFIGHTERS -- Death Benefits (line-of-duty presumption)
PUBLIC OFFICERS AND EMPLOYEES -- Death Benefits (line-of-duty presumption for paid firefighter)

GENERAL MUNICIPAL LAW 208-b; RETIREMENT AND SOCIAL SECURITY LAW 363-d: The line-of-duty presumption in Retirement and Social Security Law 363-d does not apply to death benefits provided pursuant to General Municipal Law 208-b.

You ask whether the line-of-duty presumption in Retirement and Social Security Law 363-d applies in the case of death benefits pursuant to General Municipal Law 208-b, for a firefighter who died of cancer prior to retirement.

General Municipal Law 208-b provides, in relevant part, for the payment of death benefits to the "widow" of a regular member of a fire department of a city with a population of less than one million, provided that the chief officer of such municipality determines, upon application, the following: (i) that the member died within one year after, and as the natural and proximate result of, injuries sustained at a definite time and place and incurred in the performance of duty as a member of such department; and (ii) that the member did not cause such accident by his own willful negligence. A death benefit allowed under General Municipal Law 208-b is paid by the municipality and consists of: an amount equal to the greater of the salary received by the member during the year immediately preceding his death, or the salary received during the year preceding such injuries; and an amount equal to the greater of one thousand dollars or ten percent of the deceased member's final salary, payable for each child of such member under eighteen on the date of the member's death. The benefits under section 208-b are "in addition to any benefits otherwise provided".

Retirement and Social Security Law 363-d provides 
that, "(n)otwithstanding any other provisions of this chapter to the contrary" (emphasis added), any melanoma or conditions of certain types of cancers1 that result in the total or partial disability or death to a paid firefighter who successfully passed a physical exam upon entry into firefighting service that failed to reveal any evidence of the cancer, constitutes presumptive evidence that it was incurred in the performance and discharge of his or her duties, unless the contrary is proved by competent evidence.2

Section 363-d, by its express terms, applies notwithstanding any contrary provisions of the Retirement and Social Security Law. The specific reference to the Retirement and Social Security Law, but no other law, suggests that the presumption is intended to apply only to accidental disability retirement, accidental death and similar "line-of-duty" benefits provided pursuant to the Retirement and Social Security Law.3 This inference is supported by memoranda in the bill jackets for chapter 49 of the Laws of 1997, which added section 363-d. The bill jacket indicates that the presumption in section 363-d is for the benefit of firefighters in the New York State and Local Retirement System, with the cost of the benefit shared among participating employers in the New York State and Local Retirement System (see, e.g., Bill Memorandum for A.2958, M. of A. Tocci; Budget Report on A. 2958, April 25, 1997). General Municipal Law 208-b, on the other hand, expressly provides for a death benefit "in addition to any benefits otherwise provided", indicative of a benefit that is independent of benefits provided to members of the New York State and Local Retirement System under the Retirement and Social Security Law.

Further, this reading of section 363-d is consistent with the holding by the Court of Appeals in Matter of Sutka v Conners, 73 NY2d 395, 541 NYS2d 191. In Matter of Sutka, supra, the Court of Appeals considered whether the presumption created under Retirement and Social Security Law 363-a, that injury to or impairment of the heart was the natural and proximate result of an accident incurred by a paid firefighter in the performance and discharge of duty, should be "read into" General Municipal Law 207-a, which, generally, provides for the payment of the full amount of regular salary or wages to a paid firefighter injured or taken sick in or as a result of the performance of duties. The Court first noted that section 363-a, as originally enacted, expressly restricted availability of the presumption to retirement system matters. Although the clauses expressly limiting the statute to retirement matters were dropped in a subsequent amendment, the Court held that the amendment was not intended to increase the scope of coverage to include section 207-a benefits.

The Court noted that Retirement and Social Security Law 363-a and General Municipal Law 207-a represent separate disability systems with differing coverages and consequences.

The Court further distinguished these sections, indicating that each statute applies to different groups (firefighters who belong to an organized fire company or department in the case of General Municipal Law 207-a, and members of a retirement system as defined by the
Retirement and Social Security Law in the case of Retirement and Social Security Law 363-a), and that the benefits are administered differently under the two statutes, with payment by the municipality or fire district under General Municipal Law 207-a and payment by the retirement system under Retirement and Social Security Law 363-a. The Court in Sutka, supra, also examined the legislative history of each statute, finding no evidence of a legislative intent to apply the job-related disability presumption of Retirement and Social Security Law 363-a to General Municipal Law 207-a. Citing the bill jackets for section 363-a, the Court indicated that the legislative history supported the conclusion that section 363-a was intended to provide a line-of-duty presumption for retirement disability benefits, paid by the retirement system to retirement system members.

Similarly, here, General Municipal Law 208-d and Retirement and Social Security Law 363-d represent separate benefit systems with differing coverages, administered under two separate statutory schemes. Further, the legislative history here, as in Sutka, supra, indicates that the section 363-d presumption relates to benefits for members of the New York State and Local Retirement System, paid by the System. In contrast, General Municipal Law 208-b authorizes the payment of death benefits by a municipality, in addition to and independent of any benefits the firefighter may be entitled to as a member of the System.

Accordingly, it is our opinion that the line-of-duty presumption in Retirement and Social Security Law 363-d does not apply to death benefits provided pursuant to General Municipal Law 208-b.

September 22, 2003

Michael G. Cianfarano, Esq., Assistant City Attorney
City of Oswego

1 For purposes of this opinion, we have assumed that the type of cancer at issue is one listed in section 363-d.

2 Section 363-d is scheduled to expire on July 1, 2005.

3 By way of comparison, General Municipal Law 207-kk, also scheduled to expire on July 1, 2005 and applicable only to paid members of a fire department in a city with a population of one million or more, provides a line-of-duty presumption for certain cancers, "[n]otwithstanding any other provisions of this chapter to the contrary". Similarly, section 207-k of the General Municipal Law provides a line-of-duty presumption for conditions of impairment of health caused by diseases of the heart for paid members of the uniformed force of a paid police department or fire department under certain circumstances and applies, with certain exceptions, "[n]otwithstanding the provisions of any general, special or local law or administrative code to the contrary" (see also Matter of Tuffillaro v City of Elmira, 94 AD2d 882, 463 NYS2d 561, applying the section 207-k presumption for purposes of entitlement to section 208-b benefits). Further, section 207-q of the General Municipal Law, enacted by chapter 534 of the Laws of 2002 and deemed to have been in full force and effect on and after September 11, 2001, provides a line-of-duty presumption for diseases of the lung, "[n]otwithstanding any provision of this chapter to the contrary, and for purposes of this chapter "