ALBANY - Pension fund administrators failed to present sufficient evidence to overcome the presumption in the law that the serious illnesses of three former police officers who responded after the Sept. 11, 2001 terror attacks were due to their exposure to toxins in the World Trade Center rubble, the state Court of Appeals ruled yesterday.
The 6-0 court decided that while the so-called World Trade Center presumption is not a per se rule mandating enhanced accidental disability retirement benefits in all cases for first responders, the pension fund is required to present "competent evidence" to rebut the presumption.
The judges said the trustees of the New York Police Department pension fund had failed to do so in all three cases before the court yesterday.
"Under this carefully calibrated framework, we believe that the competent evidence contemplated by the WTC presumption may be equated with the well-established credible evidence standard, provided that the pension fund bears the burden of coming forward with affirmative evidence to disprove causation," Judge Victoria Graffeo (See Profile) wrote for the court. "In other words, unlike the typical application for disability benefits, a pension fund cannot deny ADR benefits by relying solely on the absence of evidence tying the disability to the exposure."
The judges said that under the credible evidence standard, it agreed with Appellate Division, First Department, panels that the presumption that the cancerous conditions in officers Frank Macri and Karen Bitchatchi were caused by their exposure at the World Trade Center site "was not rebutted by credible evidence."
In the case of the third officer, Eddie Maldonado, the court noted that he conceded that a cancerous growth had been discovered in his thigh prior to Sept. 11, 2001. But Maldonado argued that the tumor grew from the size of a walnut to the size of a softball between September 2001 and November 2001, and he blamed the acceleration of the growth to his exposure to toxins at the World Trade Center.
In rejecting Maldonado's eligibility for ADR benefits, the pension trustees and a First Department panel discounted the opinion of Maldonado's expert that there was a connection between the officer's presence at Ground Zero and the growth in his tumor.
"But in light of the presumption, petitioner carried no burden to offer any evidence of causation," Graffeo wrote. "Simply put, the Board could not rely on petitioner's deficiencies to fill its own gap in proof. Because the record contains no affirmative credible evidence to rebut the presumption, we reverse and hold that petitioner is entitled to ADR benefits."
Chief Judge Jonathan Lippman (See Profile) and Judges Carmen Beauchamp Ciparick (See Profile), Susan Phillips Read (See Profile), Robert Smith (See Profile) and Eugene Pigott Jr. (See Profile) joined in the Graffeo ruling.
The court made one ruling in the cases of Matter of Bitchatchi v. Board of Trustees of the New York City Police Department Pension Fund, Article II, 219; Matter of Maldonado v. Kelly, 220; and Matter of Macri v. Kelly, 221. The court heard all three cases during oral arguments in November (NYLJ, Nov. 14).
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