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
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
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
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.
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
"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
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
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
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