Posted Mar 1, 2011 by Troy Rosasco on How long do I have to file a Zadroga 9/11 Compensation claim?
In the first World Trade Center Appellate disability pension decision in favor of a first responder, the Appellate Division, Second Department, held that the New York City Fire Department Pension Fund Medical Board had provided an inadequate rationale several times in recommending denial of a petition for benefits brought by the widow of Lt. Cruz A. Fernandez in Matter of Fernandez v. Board of Trustees of N.Y. Fire Dept. Pension Fund, Subchapter 2 (App. Case# 2009-06506; Index#26232/08).
The Appellate Division overturned the denial by the FDNY Pension Fund of a petition for line of duty death benefits brought under the “World Trade Center Law”, which had been previously upheld by the lower Court, and remanded the application for further consideration. The application was brought by the widow of an FDNY Lieutenant who had run 9 marathons during his career, and spent hundreds of hours at the World Trade Center site, and retired in good health in 2002.
But soon after he began to suffer various health issues, and eventually died in July 2006 as a result of a complex cardiac event while playing in shallow water with his young nephew in full view of his family while on vacation. The widow’s multiple medical experts found the decedent to have died as a result of his toxic 9/11 exposures, as evidenced by coal dust found throughout his body during an autopsy, including his lungs, and other scientific indicators that demonstrated that his body, particularly his heart, had been weakened by the toxins, which lead to the cardiac event that caused his death.
The Pension Fund Medical Board found the death to simply be a drowning, which was adopted by the Fund’s Board of Trustees; and in Court the Pension Fund argued that even if the petitioner was caused to drown by a cardiac event, it was a standard heart attack, with no WTC exposure connection. The widow argued the black coal dust in the decedent’s body and lungs, known as anthracosis (coal miners’ disease), which was the primary factor in his death, was both a “disease of the lower respiratory tract” as well as “heavy metal poisoning”, which are both “qualifying conditions” under the under the WTC Law, and thus the death was WTC related.
The Court held in reversing the lower Court and the Fund: “Although the Board of Trustees [of the pension fund] is entitled to rely on the report and recommendation of the Medical Board, the proceedings should disclose the reason for the denial, and the determination must be set forth in such manner as to permit adequate judicial review… Under the circumstances of this case, the explanation by the Medical Board was insufficient.” The Court ordered that the Pension Fund Trustees to send the case back to its Medical Board to specifically address medical evidence indicating that Mr. Fernandez’s drowning was precipitated by his heart condition, which was the result of respiratory distress caused by responding to the 9/11 attacks.
This widow was lucky to have our partner (and fellow Zadroga 9/11 attorney) Chet Lukaszewski as her disability pension lawyer. Now lets hope the Medical Board finally does the ‘right thing’.