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In the Matter of Karen Bitchatchi v. Board of Trustees of the New York City Police Department Pension Fund

December 13, 2012

IN THE MATTER OF KAREN BITCHATCHI, RESPONDENT,
v.
BOARD OF TRUSTEES OF THE NEW YORK CITY POLICE DEPARTMENT PENSION FUND, ARTICLE II, APPELLANT.
IN THE MATTER OF EDDIE MALDONADO, APPELLANT,
v.
RAYMOND KELLY, &C., ET AL., RESPONDENTS.
IN THE MATTER OF NILDA MACRI, &C., RESPONDENT,
v.
RAYMOND W. KELLY, &C., ET AL., APPELLANTS.



The opinion of the court was delivered by: Graffeo, J.:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

Each of these appeals involves a police officer who responded to provide assistance at the World Trade Center following the September 11, 2001 attacks. Two officers seek accidental disability retirement benefits and the surviving spouse of another officer makes a claim for line-of-duty death benefits. Central to all three CPLR article 78 proceedings is the application of the statutory World Trade Center (WTC) presumption (see Administrative Code of City of NY § 13-252.1 [1] [a]), under which an officer's disability or death as a result of a qualifying condition is presumed to be caused by his or her exposure at the WTC site for purposes of benefit upgrades. The common issue presented is whether the pension fund respondents produced competent evidence to rebut the WTC presumption accorded to petitioners' claims. We hold 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. We therefore affirm in Bitchatchi and Macri and reverse in Maldonado.

I.

Police officers employed by the New York City Police Department (NYPD) who become disabled may apply for ordinary disability retirement (ODR) benefits or accidental disability retirement (ADR) benefits. ODR benefits, generally comprised of a taxable pension of one half of the officer's salary, are payable if the officer is "physically or mentally incapacitated for the performance of duty and ought to be retired" (Administrative Code of City of NY § 13-251). ADR benefits are more generous -- a tax-free pension of three quarters of the officer's salary -- but eligibility requires an additional showing that the officer's disability is the "natural and proximate result of an accidental injury received in . . . city-service" (Administrative Code of City of NY § 13-252). If a police officer dies as the result of a work-related accident, the officer's beneficiaries may recover line-of-duty death benefits, generally equating to the officer's full salary (see Administrative Code of City of NY § 13-244; General Municipal Law § 208-f).

A claimant filing for ADR benefits ordinarily has the burden of proving causation in an administrative proceeding. But as part of the Legislature's response to the World Trade Center tragedy, a new statute was enacted creating a 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. 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:

"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" (Administrative Code of City of NY § 13-252.1 [1] [a] [emphasis added]).*fn1 To take advantage of the presumption, a claimant must have participated in operations at one of the enumerated locations for "any period of time within the forty-eight hours after the first airplane hit the towers" or "a total of forty hours accumulated any time between September eleventh, two thousand one and September twelfth, two thousand two" (Retirement and Social Security Law § 2 [36] [g]). There is no dispute that all of the officers in these appeals fulfilled this requirement. A claimant must also suffer from a statutorily defined qualifying condition, including "new onset diseases resulting from exposure as such diseases occur in the future including cancer" (Retirement and Social Security Law § 2 [36] [c] [v]). Whether the officers' medical conditions qualified for the enhanced benefits is contested by the pension fund respondents in these three proceedings.

Against this statutory backdrop, we turn to the facts and procedural history underlying the appeals before us.

II.

Bitchatchi On September 11, 2001, following the terrorist attacks on the World Trade Center, petitioner Karen Bitchatchi, a police officer with the NYPD, participated in rescue and recovery operations at Ground Zero. In the ensuing days, she logged over 60 hours of work at the site. About a year later, petitioner discovered a cyst near her rectum and a biopsy revealed that she had rectal cancer.

Petitioner applied for ADR benefits based on her service at the WTC site. The Medical Board of the New York City Police Department Pension Fund, Article II (the Medical Board) recommended disapproval, stating that the "causal factor" of the cancer was not exposure at the WTC location; instead it was petitioner's prior ulcerative colitis, a condition that had been surgically addressed about 20 years earlier. To refute this conclusion, petitioner submitted two letters from her oncologist, Dr. Martin Oster, who opined that "her rectal cancer was not related to her ulcerative colitis . . . but rather related to her toxic exposures at the WTC site." Dr. Oster explained that his conclusion was supported by the "two hit" hypothesis, under which "more than one mutational event is needed to induce cancer, in this case, the two events being colitis followed by exposure to carcinogens at the 9/11 site." The Medical Board considered Dr. Oster's evidence but reaffirmed its original recommendation to deny ADR benefits. Respondent Board of Trustees of the New York City Police Pension Fund, Article II (the Board of Trustees) upheld the recommendation by a tie vote, thus awarding petitioner the lesser ODR benefits.*fn2

In petitioner's CPLR article 78 proceeding challenging the Board of Trustees' denial of her ADR benefits, Supreme Court granted the petition to the extent of remanding the matter to the Board for reconsideration. On remand, the Medical Board again decided that petitioner's cancer was not causally related to the WTC site for two reasons. First, it cited a 2009 medical journal article to draw a correlation between petitioner's ulcerative colitis and her cancer. Second, it referenced "clinical data" regarding the growth rates of tumors and found it "highly likely" that the two-centimeter mass discovered in October 2002 was present prior to September 11, 2001. The Board of Trustees subsequently rejected petitioner's ADR application by a tie vote.

Petitioner brought another article 78 proceeding for judicial review of the Board of Trustees' determination. Supreme Court granted the petition, annulled the Board of Trustees' decision and held that petitioner was entitled to ADR benefits as a matter of law. The court found that the Medical Board failed to adduce competent evidence to overcome the statutory presumption that petitioner's cancer was caused by her activities at the WTC site. The Appellate Division affirmed (86 AD3d 427 [1st Dept 2011]). We granted the Board of Trustees leave to appeal (18 NY3d 807 [2012]).

Macri

Frank Macri, a NYPD police officer, was one of the first responders at the World Trade Center on the September 11, 2001 and was on site when the first tower fell. Later that day, he received treatment for his injuries, which included multiple lacerations and smoke inhalation. A chest x-ray taken at that time revealed no evidence of lung cancer. Over the next several months, Macri spent about 350 hours participating in the massive recovery and cleanup effort at both Ground Zero and the Fresh Kills Landfill. In July 2002, he sought treatment from an orthopedist for the sudden onset of pain in his back and thigh. The ...


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