Court OKs benefits for 3 Ground Zero workers

ALBANY -- New York's highest court Thursday upheld claims for enhanced disability and death benefits initially denied for three police officers who claimed their cancers resulted or worsened from rescue, recovery and cleanup work at the World Trade Center after the Sept. 11, 2001, terrorist attacks.

The Court of Appeals, ruling unanimously, said New York lawmakers imposed the burden of proof on the Medical Board of the New York City Police Department Pension Fund, requiring "competent evidence" to rebut the presumption for disability claims from toxic Ground Zero in lower Manhattan.

Normally the burden of proof is on the ailing person to prove the illness is work-related. Here, the special law says those police who worked at Ground Zero within the first two days after the first attack or 40 hours within the first year and develop "new onset diseases resulting from exposure" are presumed to have a valid claim, unless the medical board proves otherwise.

Former officers Karen Bitchatchi and Eddie Maldonado are entitled to accidental disability retirement benefits, a tax-free pension at three-quarters salary, instead of the typical taxable one-half pension, the court said. Frank Macri's widow is entitled to line-of-duty death benefits of his full salary.

"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 to the toxins present at the WTC site in the aftermath of the destruction," Judge Victoria Graffeo wrote.

Unlike the typical application for disability benefits, a pension fund cannot deny accidental disability retirement benefits by relying solely on the absence of evidence tying the disability to the exposure, Graffeo said in the ruling.

City officials said Thursday that while the officers' service was laudable, in each case a three-person independent medical board reviewed their records multiple times and found "a high degree of medical certainty" their cancers weren't caused by Sept. 11. They noted that the court didn't find those diagnoses to be incorrect.

The top court agreed with lower courts that the medical board failed to rebut with credible evidence the claims by Bitchatchi and Nilda Macri.