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

To contact us Click HERE

Claims that healthimpairments suffered by 9-11 first responders seeking benefits resulted fromduties performed at the World Trade Center requires the pension fund to producecompetent evidence to rebut the statutory presumption that such was the caseBitchatchi v Board of Trustees of the N.Y. City Police Dept.Pension Fund, Art. II,  2012 NYSlip 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 orlocal law, charter or rule or regulation to the contrary, if any condition orimpairment of health is caused by a qualifying World Trade Center condition asdefined in section two of the retirement and social security law, it shall bepresumptive evidence that it was incurred in the performance and discharge ofduty and the natural and proximate result of an accident not caused by suchmember's own willful negligence, unless the contrary be proved by competentevidence, " [emphasis supplied by the court].
Addressing a number of appeals involving police officers whoresponded to provide assistance at the World Trade Center following theSeptember 11, 2001 attacks in which two officers sought accidental disabilityretirement benefits [ADR] and the surviving spouse of another officer made aclaim for line-of-duty death benefits, the Court of Appeals said that “Thecommon issue presented is whether the pension fund respondents producedcompetent evidence to rebut the WTC presumption accorded to petitioners'claims” by law.
In this instance the court held that “that respondents didnot meet their burden of disproving that the officers' disabilities or deathwere causally related to their work at the World Trade Center and relatedsites,” and thus the applications of two officers seeking [ADR] benefits andthe claim of the surviving spouse of the third officer for line-of-duty deathbenefits should be granted.
The court explained that although a claimant filing for ADRbenefits ordinarily has the burden of proving causation in an administrativeproceeding, the Legislature's response to the World Trade Center tragedy was toenact a new statute creating a rebuttable presumption in favor of ADR benefitsfor police officers who performed rescue, recovery or cleanup operations atspecified locations, including the World Trade Center and the Fresh KillsLandfill.
Accordingly, under the WTC presumption, the pension fundbears the initial burden of proving that a claimant's qualifying condition wasnot caused by the hazards encountered at the WTC site as the Legislaturecreated the WTC presumption to benefit first responders because of theevidentiary difficulty in establishing that non-trauma conditions, such ascancer, could be traced to exposure to the toxins present at the WTC site inthe aftermath of the destruction.
Hence, unlike ordinary ADR claimants, first responders neednot submit any evidence — credible or otherwise — of causation to obtain theenhanced benefits. Nevertheless, the Legislature did not create a per se rulemandating ADR benefits for all eligible responders. Rather, it provided that apension fund could rebut the presumption by "competent evidence."
In other words, said the Court of Appeals, unlike thetypical application for disability benefits, a pension fund cannot deny ADRbenefits by relying solely on the absence of evidence tying the disability tothe exposure.
* Similar provisions extend the WTC presumptionto 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]. Thepresumption also applies where a police officer later dies and death benefitsare 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 Sections207-a/207-c and providing benefits thereunder and other disability retirementissues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ foradditional information about this electronic reference manual.

========================