By Daniel Wiessner
ALBANY, New York (Reuters) - New York state's top court has cleared the way for two New York City police officers who were diagnosed with cancer after working at Ground Zero following the September 11 attacks to collect disability benefits.
The Court of Appeals found that the officers were entitled to benefits under a 2005 law known as the "World Trade Center presumption," even though the New York Police Department pension fund argued that the illnesses were caused by pre-existing conditions.
The law applies to public employees who participated in rescue, recovery or clean-up efforts after September 11 and developed cancer, respiratory illnesses or certain other diseases. It says these illnesses are presumed to have been caused by exposure to toxins at Ground Zero and other sites, unless there is "competent evidence" to the contrary.
"The legislature created the WTC presumption to benefit first responders because of the evidentiary difficulty in establishing that non-trauma conditions, such as cancer, could be traced to exposure of the toxins present at the WTC site," Judge Victoria Graffeo wrote for the court.
The court also said that the wife of a third officer who died of cancer was entitled to benefits.
Officer Karen Bitchatchi participated in rescue and recovery efforts on September 11, and logged over 60 hours of work in the ensuing days, the court said. In 2002, she discovered a cyst near her rectum and was diagnosed with rectal cancer.
Officer Frank Macri was on site when the first tower collapsed on September 11. He spent about 350 hours at Ground Zero and the Fresh Kills Landfill, where debris was dumped, the court said, before being diagnosed with lung cancer in 2002. He died in 2007.
Officer Eddie Maldonado spent about 40 hours at the World Trade Center site, just months after discovering a walnut-sized lump in his thigh. By November 2001, the lump had grown to the size of a softball, the court said, and he was diagnosed with cancer.
Bitchatchi, Maldonado and Macri's widow filed for accidental disability retirement benefits. In all three cases, the officers' doctors testified that their cancer was either caused by or exacerbated by their work at Ground Zero.
The board of trustees of the NYPD pension fund denied the applications, after a medical panel found that in each case the cancer was caused by a pre-existing condition. The officers were approved for "ordinary" disability benefits, which provide far less money than accidental benefits.
The Court of Appeals found that the officers were not required to submit medical evidence linking their cancer to the September 11 rescue, recovery or clean-up effort.
Chester Lukaszewski, who represented Maldonado, said that even if they could not provide absolute proof, the officers were being given "the benefit of the doubt because they were put in harm's way."
Paul Rephen, who argued the case for the city, said in a statement that he was "disappointed."
(Editing by Noeleen Walder and David Brunnstrom)