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First Responder, a NYC Police Officer, Was Entitled to the World Trade Center Presumption that Her Illness, Fibromyalgia, Was Caused by Environmental Exposure at the Site of the 2001 Collapse of the World Trade Center

The First Department, in a full-fledged opinion by Justice Acosta, determined a NYC police officer was entitled to the World Trade Center (WTC) presumption that her illness, fibromyalgia, was caused by her exposure at the site of the World Trade Center collapse in 2001.  The officer was therefore eligible for accidental disability retirement (ADR):

Administrative Code § 13-252.1 provides 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” (§ 13-252.1[1][a]…). “Qualifying World Trade Center condition” is defined to include, among other conditions, “[n]ew onset diseases resulting from exposure as such diseases occur in the future including cancer, asbestos-related disease, heavy metal poisoning, and musculoskeletal disease” (§ 2 [36][c][v] [emphasis added]). * * *

Here, the evidence shows that petitioner did not have fibromyalgia before September 11, 2001, and that she developed disabling fibromyalgia and chronic fatigue syndrome in the wake of her WTC exposure.

Because it was “caused by a qualifying [WTC] condition,” petitioner’s fibromyalgia is presumed to have been “incurred in the performance and discharge of duty and the natural and proximate result of an accident not caused by [her] own willful negligence, unless the contrary be proved by competent evidence” (Administrative Code § 13-252.1[1][a]). Respondents bear the burden of showing that petitioner’s qualifying injury was not incurred in the line of duty … . The Board of Trustees’ determination must be supported by credible evidence in the record … .

The significance of the presumption is that, “unlike ordinary ADR claimants, first responders need not submit any evidence — credible or otherwise — of causation to obtain the enhanced benefits” … Thus, the Board “cannot deny ADR benefits by relying solely on the absence of evidence tying the disability to the exposure” … . * * *

…[R]espondents have failed to rebut the presumption that petitioner’s qualifying condition, fibromyalgia, was caused by hazards encountered at the WTC site.  Matter of Sheldon v Kelly, 2015 NY Slip Op 01404, 1st Dept 2-17-15

 

 

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