ALBANY — New York’s highest court on Thursday upheld claims for enhanced disability and death benefits initially denied for three police officers who claimed their cancers resulted or worsened from rescue, recovery and cleanup work at the World Trade Center after the Sept. 11, 2001, terrorist attacks.
The Court of Appeals, ruling unanimously, said New York lawmakers imposed a special burden of proof on the Medical Board of the New York City Police Department Pension Fund, requiring “competent evidence” to rebut the presumption granted disability claims from toxic Ground Zero in lower Manhattan.
Former officers Karen Bitchatchi and Eddie Maldonado are entitled to accidental disability retirement benefits, a tax-free pension at three-quarters salary, instead of the typical taxable one-half pension, the court said. Frank Macri’s widow is entitled to line-of-duty death benefits of his full salary.
“The Legislature created the WTC presumption to benefit first responders 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,” Judge Victoria Graffeo wrote. “Unlike the typical application for disability benefits, a pension fund cannot deny ADR benefits by relying solely on the absence of evidence typing the disability to the exposure.”
The top court agreed with lower courts that the medical board failed to rebut with credible evidence the claims by Bitchatchi and Nilda Macri.
Bitchatchi participated in the rescue and recovery work at the trade center site the day hijacked jetliners crashed and eventually leveled the twin office towers, killing almost 3,000 people. She logged about 60 hours at the site, discovered a cyst about a year later and a biopsy showed rectal cancer. The medical board recommended disapproval of her claim for accidental disability benefits, concluding her prior ulcerative colitis caused the cancer, not recent exposure to toxins.
Her oncologist maintained more than one mutational event is needed to induce cancer, and the second was the exposure.
Maldonado spent more than 40 hours in recovery efforts at the trade center site starting Sept. 12, 2001. Shortly before, he had noticed a walnut-size lump in his thigh. By November, when it was confirmed cancerous in a biopsy, it was the size of a softball. The medical board said the timing showed the toxic exposure did not cause the disease, though Maldonado’s doctor said it aggravated the cancer.
The Court of Appeals, overturning lower courts, said the burden of proof was on the medical board, which could not rely on gaps in Maldonado’s proof. The board had rejected the doctor’s opinion as speculative.
Macri, who was at Ground Zero when the first tower fell, received treatment for lacerations and smoke inhalation that day and spent about 350 hours in the recovery and cleanup there and at the Fresh Kills Landfill. In August 2002, he was diagnosed with lung cancer that had spread to his pelvis. The medical board said the metastatic cancer must have pre-existed, citing “substantial” medical literature on the “doubling times” of lung cancers.