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Friday, December 14, 2012

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

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:


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