By Daniel Wiessner

ALBANY, N.Y., Dec 13 (Reuters) - New York state's top court has cleared the way for two New York City police officers diagnosed with cancer after working at Ground Zero following the Sept. 11 attacks to collect disability benefits.

The Court of Appeals found that the officers were entitled to benefits under a 2005 law known as the "World Trade Center presumption."

The presumption applies to public employees who participated in rescue, recovery or cleanup efforts after 9/11 and developed cancer, respiratory illnesses or certain other diseases. The law says these illnesses are presumed to have been caused by exposure to toxins at Ground Zero and other sites, unless there is "competent evidence" to the contrary.

"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 of the toxins present at the WTC site," Judge Victoria Graffeo wrote for the court.

The court also said the wife of a third officer who died of cancer was entitled to benefits.

Officer Karen Bitchatchi participated in rescue and recovery efforts on Sept. 11 and logged over 60 hours of work in the ensuing days, the court said. In 2002, she discovered a cyst near her rectum and was diagnosed with rectal cancer.

Officer Frank Macri was on site when the first tower collapsed that morning. He spent about 350 hours at Ground Zero and the Fresh Kills Landfill, where debris was dumped, the court said. He was being diagnosed with lung cancer in 2002 and died in 2007.

Officer Eddie Maldonado spent about 40 hours at the World Trade Center site, just months after discovering a walnut-size lump in his thigh. By November 2001, the lump had grown to the size of a softball, the court said, and he was diagnosed with cancer.

Bitchatchi, Maldonado and Macri's widow, Nilda Macri, filed for accidental disability retirement benefits. In all three cases, the officers' doctors testified that their cancer was either caused or exacerbated by their work at Ground Zero.

The board of trustees of the NYPD pension fund separately denied the applications, after a medical panel found the cancer in each case was caused by a pre-existing condition. The officers were approved for "ordinary" disability benefits, which provide far less money than accidental benefits.

WTC STATUTE

In 2010, state Supreme Court justices in Manhattan annulled the board's determinations with respect to Bitchatchi and Macri, but upheld the denial of benefits for Maldonado, because he admitted to finding the cancerous lump prior to 9/11, the Court of Appeals said.

Last year, the Appellate Division, First Department, affirmed in all three cases.

The Court of Appeals on Thursday sided with the three officers. Citing the World Trade Center presumption, the court found that the officers were not required to submit medical evidence linking their cancer to the 9/11 rescue, recovery or cleanup effort.

"When the Board fails to rebut the presumption, the WTC statute presumes causation and contemplates the award of (disability) benefits -- even if the claimant offers no medical proof," Graffeo wrote.

Chief Judge Jonathan Lippman and Judges Carmen Ciparick, Eugene Pigott, Susan Read and Robert Smith concurred.

Attorneys for all three officers praised the decision.

"Even if someone cannot give absolute proof, we're giving responders the benefit of the doubt because they were put in harm's way," said Chester Lukaszewski, who represented Maldonado.

Paul Rephen, who argued the case for the city, said in a statement that he was "disappointed."

"In each case, a three-person independent medical board reviewed the plaintiffs' medical records ... (and) found there was a high degree of medical certainty that the individuals' cancers weren't caused by 9/11," he said.

A spokesman for the NYPD did not return a request for comment.

The cases are the matters of Karen Bitchatchi v. Board of Trustees of the New York City Police Department Pension Fund; Eddie Maldonado v. Raymond Kelly; and Nilda Macri v. Raymond Kelly, New York State Court of Appeals, Nos. 219-221.

For Bitchatchi: Rosemary Carroll.

For Maldonado: Chester Lukaszewski.

For Macri: James McGuire of Dechert.

For the NYPD: Paul Rephen of the New York City Law Department.

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