Claims that health
impairments suffered by 9-11 first responders seeking benefits resulted from
duties performed at the World Trade Center requires the pension fund to produce
competent evidence to rebut the statutory presumption that such was the case
Bitchatchi v Board of Trustees of the N.Y. City Police Dept.
Pension Fund, Art. II, 2012 NY
Slip Op 08566, Court of Appeals
The Administrative Code of City of New York §13-252.1[1][a]* provides, in pertinent part, that:
“Notwithstanding any provisions of this code or of any general, special or
local law, charter or rule or regulation to the contrary, if any condition or
impairment of health is caused by a qualifying World Trade Center condition as
defined in section two of the retirement and social security law, it shall be
presumptive evidence that it was incurred in the performance and discharge of
duty and the natural and proximate result of an accident not caused by such
member's own willful negligence, unless the contrary be proved by competent
evidence, " [emphasis supplied by the court].
Addressing a number of appeals involving police officers who
responded to provide assistance at the World Trade Center following the
September 11, 2001 attacks in which two officers sought accidental disability
retirement benefits [ADR] and the surviving spouse of another officer made a
claim for line-of-duty death benefits, the Court of Appeals said that “The
common issue presented is whether the pension fund respondents produced
competent evidence to rebut the WTC presumption accorded to petitioners'
claims” by law.
In this instance the court held that “that respondents did
not meet their burden of disproving that the officers' disabilities or death
were causally related to their work at the World Trade Center and related
sites,” and thus the applications of two officers seeking [ADR] benefits and
the claim of the surviving spouse of the third officer for line-of-duty death
benefits should be granted.
The court explained that although a claimant filing for ADR
benefits ordinarily has the burden of proving causation in an administrative
proceeding, the Legislature's response to the World Trade Center tragedy was to
enact a new statute creating a rebuttable presumption in favor of ADR benefits
for police officers who performed rescue, recovery or cleanup operations at
specified locations, including the World Trade Center and the Fresh Kills
Landfill.
Accordingly, under the WTC presumption, the pension fund
bears the initial burden of proving that a claimant's qualifying condition was
not caused by the hazards encountered at the WTC site as 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.
Hence, unlike ordinary ADR claimants, first responders need
not submit any evidence — credible or otherwise — of causation to obtain the
enhanced benefits. Nevertheless, the Legislature did not create a per se rule
mandating ADR benefits for all eligible responders. Rather, it provided that a
pension fund could rebut the presumption by "competent evidence."
In other words, said the Court of Appeals, 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.
* Similar provisions extend the WTC presumption to other classes of first responders, i.e., Administrative Code of City of NY §13-353.1 [firefighters]; Retirement and Social Security Law §363-bb[h] [state police]; and Retirement and Social Security Law §605-b[d] [sanitation workers]. The presumption also applies where a police officer later dies and death benefits are sought (Administrative Code of City of NY §3-252.1 [[4]).
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08566.htm
=======================
General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder and other disability retirement issues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.
========================
General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder and other disability retirement issues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.
========================
