January 5, 2018

Burden of proof shifts to the first responder if he or she fails to demonstrate a causative link between his or her illness and exposure to toxins at the World Trade Center activates


Burden of proof shifts to the first responder if he or she fails to demonstrate a causative link between his or her illness and exposure to toxins at the World Trade Center activates  
Fesler v Bratton, 2017 NY Slip Op 08881, Appellate Division, First Department

Retirement and Social Security Law §2[36][c] creates a rebuttable presumption that any condition or impairment of health resulting from a qualifying World Trade Center [WTC] event was incurred in the performance and discharge of duty and the natural and proximate result of an accident not caused by the member's own willful negligence, "unless the contrary is proved by competent evidence."

Accordingly, first responders need not submit any evidence, credible or otherwise, of causation to obtain enhanced benefits if they have a qualifying condition but the burden is on the applicant to establish that "qualifying condition."

The Appellate Division agreed with Supreme Court's holding that in first responder Andrew Fesler failed to present sufficient credible evidence that his Crohn's disease was a qualifying condition or "new onset disease" within the meaning of §2[36][c].  The court noted that Fesler's personal physician had merely opined that it was "conceivable" that there was a link between Fesler's illness and exposure to toxins at the WTC site and that the articles he provided in support of his opinion were not relevant.

In view of this, the court concluded that respondent William J. Bratton, in his capacity as New York City Police Commissioner, was entitled to rely on the Medical Board's conclusion that the medical literature cited by Fesler did not provide evidence of such a causative link and the medical data showed that first responders did not have a higher incidence Crohn's disease.

Thus the burden of proof never shifted to NYC Police Department and Fesler was required to demonstrate a causative link between his illness and his alleged exposure to toxins at the World Trade Center site, which he failed to do.

The decision is posted on the Internet at:

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