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Friday, September 27, 2013

The employer is required rebut the statutory presumption that the applicant for accidental disability retirement benefits suffered a World Trade Center-related post-traumatic stress disorder with competent medical evidence


The employer is required rebut the statutory presumption that the applicant for accidental disability retirement benefits suffered a World Trade Center-related  post-traumatic stress disorder with competent medical evidence
Ginther v Kelly, 2013 NY Slip Op 05967, Appellate Division, First Department

§13-252.1 of New York City’s Administrative Code, was amended by adding a new provision, §13-252.1[1], the so-called “World Trade Center Law.” This amendment established a rebuttable presumption that "any condition or impairment of health . . . caused by a qualifying World Trade Center condition" as defined in the Retirement and Social Security Law, "shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident . . . unless the contrary be proved by competent evidence."

Mary Gintherfiled a petition pursuant to CPLR Article 78 challenging the New York City Police Commissioner’s denying her application for World Trade Center accidental disability retirement benefits. Supreme Court dismissed Ginther’s petition and she appealed.

The Appellate Division unanimously reversed the lower court’s ruling “on the law” and annulled the Commissioner’s decision, remitting the matter to the Police Board of Trustees for recomputation of the appropriate level of benefits to be awarded to Ginther.

The Appellate Division said that the Kelly respondents “failed to meet their burden of providing competent evidence rebutting [Ginther’s] medical evidence that she suffered from post-traumatic stress disorder and depression following her service as a police officer at the World Trade Center site from September 12, 2001 until November 28, 2001.

Citing Samadjopoulos v New York City Employee’s Retirement System, 104 AD3d 268,* the Appellate Division explained that while “the Medical Board is empowered to resolve conflicting evidence, it may not ignore medical evidence and speculate as to other causes of disabling medical conditions in order to rebut the statutory presumption.”

According to the decision, the Medical Board had rejected the conclusion of Ginther’s doctors based on her delay in seeking diagnosis and treatment for her medical condition, and concluded, instead, that Ginther had suffered from a personality disorder. However, said the Appellate Division, the Medical Board did not cite any credible or competent medical evidence support of its diagnosis.

Further, said the court, the Medical Board failed to provide credible evidence or research concerning the onset of a personality disorder in middle age, a conclusion disputed by Ginther's doctor.

* The Samadjopoulos decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2013/2013_01901.htm

The Ginther decision is posted on the Internet at:
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Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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