The state's highest court on Thursday awarded enhanced pension benefits to two retired New York City police officers who said they were sickened by their work at the World Trade Center site, 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 decision by the Court of Appeals in Albany is its first ruling addressing the presumption that officers who develop certain ailments, including cancer, contracted the sickness from ground zero if they had spent time there in the months after the Sept. 11 attacks.
In a decision that is likely to be encouraging to other first responders, it put the burden of proof that their illnesses were not Sept. 11-related squarely on New York City's Police Pension Fund.
The three officers, Karen Bitchatchi, Eddie Maldonado and Frank Macri, had various kinds of cancer. Officers Bitchatchi and 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 an officer's salary, considerably more generous than ordinary disability benefits, a taxable pension of half of an officer's salary. A line-of-duty death pension is equal to an officer's full salary.
All three were borderline cases. Officers Bitchatchi and Macri developed cancer within 13 months of the terrorist attacks — too soon, in the eyes of some pension fund trustees, to be connected. Officer Maldonado had felt a lump on his thigh just before Sept. 11, 2001, and by November that year, it had grown and was diagnosed as cancer. He argued that the ground-zero toxic debris had aggravated the cancer.
The pension's medical board recommended their applications for accidental disability benefits be denied, and the trustees, who are split evenly between union and city appointees, deadlocked, resulting in the lower benefits.
But the court ruled unanimously that the officers were entitled to the enhanced benefits under a "World Trade Center presumption" for city workers that the Legislature created in 2005 and the city opposed as too costly. Ordinarily, officers injured in the line of duty would have to prove a connection between their work and the injury to qualify for accidental disability benefits.
But the presumption was created, the court said, "because of the evidentiary difficulty in establishing that nontrauma conditions, such as cancer, could be traced to exposure to the toxic substances present at the W.T.C. site in the aftermath of the destruction."
Thus, unlike other disability claimants, "first responders need not submit any evidence — credible or otherwise — of causation to obtain the enhanced benefits."
It was up to the Police Pension Fund to provide sufficient evidence to disprove that the cancers were caused or exacerbated by the conditions at the rescue and cleanup sites. The court said that was not done in these cases.
Paul Rephen, executive assistant corporation counsel for the city, said the court was not disputing the findings of the pension fund's medical board, but said only that it needed to provide more data to back up its findings. The board "will endeavor to do so in future cases," he said.
Mr. Maldonado, who is married with four children ages 19 to 24, is now in remission, but he said surgery and rheumatoid arthritis made it impossible to do the work he once did. He retired in 2009 on ordinary disability benefits. "I just hope that many others who were in the same predicament as I was can benefit," he said.
The court below the Court of Appeals had ruled against him; Thursday's ruling overturned that decision. The lower court had ruled for Officer Bitchatchi and Officer Macri's widow — rulings upheld on Thursday.
Mr. Maldonado's lawyer, Chet Lukaszewski, said he got at least a call a month from first responders who had been rejected for the World Trade Center pension.
City officials said that based on the experience of city lawyers, most first responders who applied for the enhanced benefits get them, and very few cases went to court. Officials said they knew of about 75 cases that had been litigated since the 2005 presumption law, and the city had prevailed in about 65 percent.
Ms. Bitchatchi, who is single and supports herself on her pension after retiring, has a colostomy bag because of rectal cancer. Her lawyer, Rosemary Carroll, said one "shouldn't have to leap a tall building" to get the benefits.
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