The Chief
May 7, 2004

Judge’s Ruling

Cop Gets Pension For ‘WTC Cancer'

By Mark Daly

A state judge awarded a higher-paying pension to a Police Officer last month after concluding that the officer’s throat cancer was most likely exacerbated by his exposure to airborne toxin at the World Trade Center site.

Manhattan Supreme Court Justice Kibbie F. Payne ruled that he could grant former officer Richard K. Lahm a tax-free accidental disability pension worth 75 percent of his salary “as a matter of law” because of a critical omission by the Police Pension Fund.

Cop Cited Experts

The fund’s trustees okayed a standard or “ordinary” disability pension for Mr. Lahm without referring to any medical evidence to contradict the officer’s own experts, the judge said.

Mr. Lahm filed for retirement in April 2002 after being diagnosed with Stage 3 cancer of the right tonsil and soft palate. He had responded to the World Trade Center terrorist attacks and worked at the site during the cleanup afterward, Justice Payne said in his written opinion.

The NYPD’s Chief Surgeon rejected Mr. Lahm’s application for an accidental disability pension, saying there was “no logic to claim that” the officer’s cancer ‘was aggravated by WTC exposure.”

‘Toxic Exposure’

In his submission to the pension system’s Medical Board, Mr. Lahm bolstered his claim with reports from an otolaryngologist and a radiological oncology specialist, who each said it was probable that the cancer had been caused or exacerbated by “toxic exposure,” the judge wrote. The Medical Board disagreed and forwarded the case to the pension board as an ordinary, or off-duty, disability case.

The union and management representatives on the pension board were evenly split on upgrading the pension, so Mr. Lahm retired with a taxable pension worth half his salary.

Justice Payne ruled that since the only available medical evidence came from Mr. Lahm’s doctors, prior case precedents required him to award the cop the higher-paying pension.

The city is reviewing its legal options in the case, Law Department attorney Jay Dean said in a statement.

“We are disappointed in the court’s ruling because the court based its decision on materials outside the administrative record, and because the court substituted its judgment on a medical issue which was properly decided by the Police Pension Fund’s Medical Board,” Mr. Dean said.

First Cancer Claim

Mr. Lahm’s case is believed to be the first cancer claim to arise from the World Trade center terrorist attacks. The Patrolmen’s Benevolent Association thinks it won’t be the last.

“It definitely is something to be considered in the future,” said Joseph Alejandro, the PBA’s treasurer and its representative on the pension system’s Board of Trustees.

Justice Payne acknowledged in his decision that the NYPD’s Chief Surgeon found it improbable that a stage-3 tumor could have developed in a matter of months. The judge added, however, that previous court decisions allowed the officer to claim an accidental injury on the grounds that his World Trade Center assignment had accelerated his undiagnosed illness.

Tonsil cancer accounts for less than 0.6 percent of the cancers detected each year. Tumors are usually not diagnosed until they have reached an advanced stage, which raises the risk that they will spread. The disease is commonly associated with smoking and heavy drinking, according to a July 2001 medical paper at the emedicine.com Web site.