The state's highest court on Thursday awarded enhanced pension benefits to two retired New York City police officers who said they had been sickened by their work at the World Trade Center site after the Sept. 11 attack, overturning a pension board's ruling that their cancers were not related to ground zero. The widow of another officer also won enhanced benefits.
The ruling is the first by the State Court of Appeals in Albany addressing the presumption that police officers who spent time at ground zero in the months after the attack and developed certain ailments, including cancers, had been sickened as a result of their exposure there. In a decision that is likely to be encouraging to other first responders, the court squarely gave the New York City Police Pension Fund the burden of proof to show the illne ss was not related to Sept. 11.
The three officers, Karen Bitchatchi, Eddie Maldonado and Frank Macri, had various kinds of cancer. Officer Bitchatchi and Officer Maldonado applied for accidental disability benefits, and the widow of Officer Macri, who died of cancer in 2007, applied for line-of-duty death benefits. The accidental disability benefits amount to a tax-free pension of three-quarters of the officer's salary, considerably more than the ordinary disability benefit, which has a taxable pension of one half of the officer's salary. A line-of-duty death pension is equal to the officer's full salary.
All three were borderline cases. Officer Bitchatchi and Officer Macri developed cancer within 13 months of the attacks, too soon in the eyes of some pension fund trustees to be connected to Sept. 11. Officer Maldonado had felt a lump on his thigh just before Sept. 11. By November 2001, it had grown and was diagnosed as cancer. He argued that the ground zero toxins had aggravated the cancer. The trustees, who include union and city appointees, deadlocked over the issue of whether the cancers were caused by ground zero, resulting in the lower benefits.
But the Court of Appeals ruled that the officers were entitled to the enhanced benefits under a “World Trade Center presumption†created by the State Legislature. Ordinarily, officers injured in the line of duty would have to prove a connection between their work and the injury. But the presumption was created, the court said, “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 W.T.C. site in the aftermath of the destruction.â€
As a result, unlike ordinary disability claimants, “first responders need not submit any evidence â€" credible or otherwise â€" of causation to obtain the enhanced benefits.â€
It was up to the Po lice Pension Fund to provide sufficient evidence to disprove that the cancers were caused or exacerbated by work at ground zero, and that was not done in these cases, the court said.
