ALBANY - Members of the state Court of Appeals questioned how they or other non-medical experts could gauge with accuracy whether serious health conditions among first responders to the World Trade Center on 9/11 were actually caused by toxic materials released during the terror attacks.
The court heard arguments yesterday in the cases of two former police officers and the wife of a dead officer who were all initially denied Accident Disability Retirement (ADR) benefits by the trustees of the New York Police Department’s pension fund.
The trustees ruled in each case that links to the officers’ cancers and their exposure to toxins at Ground Zero were not conclusive enough medically to allow for the statutory presumption that first-responders’ cancers and other serious medical conditions were caused by 9/11.
But several judges, including Chief Judge Jonathan Lippman (See Profile) and Judge Carmen Beauchamp Ciparick (See Profile), wondered whether the pension board’s denial of the ADR benefits defeated the whole purpose of having a presumption in the law in the first place to protect the first responders or their survivors.
Judge Robert Smith (See Profile) suggested that if the presumption in the New York City Administrative Code, §13-252.1, is not treated as a true presumption, then the claims of virtually all first responders could be denied by the pension board because medical evidence linking an event like 9/11 to exposure to the debris at Ground Zero is far from conclusive.
One dishonest doctor could also sabotage the awarding of benefits, Smith suggested.
“Be cynical for a moment,” Smith said to Paul Rephen, an assistant corporation counsel defending the pension board’s denial of benefits. “Assume that you’ve got a doctor who would say anything. I know that there are no such doctors. But assume you have a doctor who will say anything. Why can’t that doctor win every case by saying, ‘This, in my medical opinion, to a high degree of certainty, this was not caused by the World Trade Center?’ How are we supposed to know that?’”
Rephen insisted that the board must make what he called a “rational, fact-based” finding that discounted the connection between 9/11 and subsequent health problems by police, firefighters and other emergency personnel who responded to the crisis.
Rephen was forced to repeatedly defend the handling of one of the three cases in particular, that of the late officer, Frank Macri.
The trustees of the pension fund denied ADR benefits to Macri’s widow, Nilda, based on the findings of the board, which said Macri’s lung cancer, discovered in July 2002, was of such an advanced stage, Stage 4, that it could not have been caused by 9/11 and must have predated the attack.
Judge Victoria Graffeo (See Profile) and other judges suggested that the medical board failed to cite studies justifying its position that Macri’s cancer could not have been caused by 9/11, but based its findings on the fact its doctors had never seen such a fast-moving cancer.
“If there is no justification from a medical board, how are the courts supposed to evaluate this?” she asked.
Smith added, “Suppose the cancer here is at Stage 2 rather than Stage 4 and the medical board said, ‘In our opinion, Stage 2 can’t happen that fast.’ How would we know whether they were making sense?”
“With all due respect,” Rephen responded, “I don’t think it’s for the courts, it’s for the [pension fund] trustees to make that determination.”
The Macri family’s attorney, James McGuire of Dechert, argued that the medical board never adequately cited the evidence the panel used to conclude that Macri’s lung cancer must have predated 9/11.
McGuire, a former justice of the Appellate Division, First Department, said the medical board was, in essence, using unspecified proof and then saying, “Trust us.”
“That’s just not right,” McGuire argued.
Accepting the decisions by the pension fund’s trustees was defeating the reason to create a medical presumption to benefit the first responders, he said.
“The Legislature must have intended the presumption to mean something,” McGuire said.
Chet Lukaszewski of Lake Success argued for Officer Eddie Maldonado.
Attorney Rosemary Carroll of Clermont submitted papers in support of Karen Bitchatchi, the third officer who blamed her cancer on exposure at Ground Zero.
Section 3-252 of New York City’s Administrative Code states that there is a legal presumption that “any condition or impairment of health…resulting in disability to a member who participated in World Trade Center rescue, recovery or cleanup operations” was caused by exposure to toxic substances at Ground Zero.
Emergency personnel must have spent at least 40 hours at the site to qualify. Those qualifying for ADR benefits get three-quarters of their final salaries tax-free.
Ordinary disability retirement benefits pay one-half of an officer’s final salary in taxable benefits.
Macri died of lung cancer in 2007 at age 51.
Maldonado, 48, lost some use of his left leg from the removal of a cancerous growth discovered in his thigh just prior to 9/11. He said the growth became much larger in the months following his assignment to Ground Zero.
Bitchatchi, 47, worked up to 16 hours a day as part of the “bucket brigade” removing debris and remains from the site. About one year later, she had a cancerous cyst removed from her rectum.
The pension fund trustees, in disallowing her claim, said she had colitis as a younger person and that a link has been proven between colitis and cancers of the rectum and colon.
The court is expected to hand down a ruling in December. The cases are 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.
McGuire said this was his first argument before the Court of Appeals in 18 years, when he was in the appeals bureau of the Manhattan District Attorney’s Office.
“I was thrilled to be back before the Court of Appeals,” he said. “It’s always a hot bench and they understood the case very well.”
Yesterday’s oral arguments were the first since last week’s sudden death of Judge Theodore Jones Jr. A vase of flowers was placed in front of his seat on the bench.
In brief remarks before arguments, Lippman said all members of the court had “admiration, respect and affection” for their former colleague.
“He was a gentle and a sweet lovely person with a wonderful smile and a wonderful laugh,” Lippman said.
@|Joel Stashenko can be contacted at email@example.com.