December 17, 2012


Court Awards Accident Disability Pensions To 3 Ground Zero Cops

Rule Burden is on Pension Board to Prove Disease Had Other Origins

By Mark Toor

The state’s highest court last week overruled the denial of maximum benefits in the cases of three police officers stricken with cancer, saying the Police Pension Fund’s rulings violated the World Trade Center Presumption.


FIRST-RESPONDER WINS IN COURT: Eddie Maldonado, with his wife, Inez, contracted cancer as a result of exposure to 9/11 debris, but the Police Pension Fund denied him a three-quarters disability pension because its doctors believed the tumor had been present before the attack. The state Court of Appeals ruled in the cases of Mr. Maldonado and two other cops that under the World Trade Center Presumption, the burden of proof rested with the fund, not the ailing officers.

The decision said that officers applying for an accidental-disability pension due to Ground Zero exposure need not even present medical evidence to prevail. It’s up to the Pension Fund’s medical board to disprove their claim with “affirmative, credible evidence.”

Attorney: Ruling ‘Huge’

Though city attorneys downplayed the effect of the Court of Appeals decision, Chet Lukaszewski, who represented one of the plaintiffs, said, “That’s huge.” He said it could have a major effect on first-responders in the future.

“These decisions are very important to all of those who answered the call of 9/11 unconditionally because it reaffirms and bolsters the law that presumes that the many and varied cancers we are seeing in NYC police officers have been caused by exposures at Ground Zero and other sites,” union President Patrick J. Lynch said in a statement. “Those of us who worked during the rescue, recovery and cleanup of the World Trade Center were aware of the great dangers we faced, but nonetheless responded and did our jobs under those conditions. 

“While we are pleased by the final outcome of these cases,” he continued, “it is unfortunate that the city put the officers and families through years of plainly frivolous challenges up to our state’s highest court, treatment that none deserved in light of their tremendous sacrifices to this city.”

The presumption, an amendment to city pension law, says any officer who was exposed to 9/11 debris can cite that as the cause of any cancer or gastrointestinal, respiratory, skin or psychological diseases that develop.

But instead, the pension fund awarded the two surviving officers half-pay ordinary-disability pensions rather than the three-quarter-pay accidental-disability pensions they had sought. It denied a line-of-duty death benefit, which is equal to the officer’s full salary, to the widow of the third. The court ordered that the three plaintiffs get the benefit for which they applied.

The Court of Appeals’ reversal of the board’s decisions underlines that in World Trade Center-related cases, the burden of proof for an accidental-disability pension, which is usually on the officer, switches to the pension board, Mr. Lukaszewski said.

Cites Difficulty of Proving

The World Trade Center presumption was created “because of the evidentiary difficulty in establishing that non-trauma conditions, such as cancer, could be traced to exposure to the toxins present at the WTC site in the aftermath of the destruction,” according to the Court of Appeals decision, which was dated Dec. 13.

“The pension funds can no longer try to rebut the presumption of causation with just their opinions,” Mr. Lukaszewski said. “They have to put forth a scientific-journal article or some other piece of tangible, affirmative evidence.”

The decision, dated Dec. 13, noted that pension-fund doctors referred to unspecified “clinical data,” “literature” or “copious data.” The court ruled that these generic references did not provide sufficient proof to override the presumption.

“When the board fails to rebut the presumption, the WTC statute presumes causation and contemplates the award of ADR benefits—even if the claimant offers no medical proof,” according to the ruling.

City: Other Causes Likely

The city expressed disappointment in the decision. “While the plaintiffs’ service was laudable,” said Executive Assistant Corporation Counsel Paul Rephen, “in each case, a three-person independent medical board reviewed the plaintiffs’ medical records multiple times. It found there was a ‘high degree of medical certainty’ that the individuals’ cancers weren’t caused by 9/11. 

“The court didn’t conclude that the medical board’s diagnoses were incorrect; rather, it found that, in light of the statute’s presumptive language, the medical board needed to provide more information to overcome the presumption. The medical board will endeavor to do so in future cases.”

Most requests for disability pensions under the World Trade Center Presumption have been granted, according to city officials. The Court of Appeals overruled the Pension Fund in only a handful of cases.

“In the limited number of instances where benefits have been denied, only very few have resulted in litigation,” said Inga van Eysden, Chief of the Law Department’s Pensions Division. “Therefore, we expect this decision to have little impact.”

Removes Doubt for Responders

Mr. Lukaszewski said the decision was particularly important because it should restore the confidence of some members of the uniformed services in their disability-pension protections. “You don’t want first-responders asking, ‘If I get sick, am I going the get the benefits I expected?’’’ he said.

The three cases covered by the Dec. 13 decision involved:

  • Karen Bitchatchi, who logged more than 60 hours of work at Ground Zero and developed rectal cancer. The Pension Fund’s medical board decided that her cancer predated 9/11, despite letters from her doctor saying that it was related to her exposure at Ground Zero.

  • Frank Macri, a nonsmoker who died of lung cancer in 2007 at the age of 52. He had served at Ground Zero and at the Fresh Kills site where the debris was sifted.The medical board told his widow, Nilda Macri, that his cancer had predated 9/11, despite statements from physicians that there was an association between his work and the cancer.

  • Eddie Maldonado, Mr. Lukaszewski’s client, who spent more than 40 hours at the site and later developed cancer. The medical board decided that because the tumor was found only three months after 9/11, it had to be developing before that date. It rejected a letter from Mr. Maldonado’s physician saying exposure at Ground Zero accelerated the growth of the tumor.