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In a  strongly worded opinion slamming the New York City Fire Department Pension Board, New York Supreme Court Justice Richard Velasquez found that the  Pension Board acted in “bad faith” and will be “sanctioned” for denying death benefits to the widow of a hero 9/11 firefighter. The Court awarded the widow a WTC death benefit pension, back benefits from 2007, interest and attorney fees.  The widow was represented by Turley, Hansen partner Chet Lukaszewski , Esq., arguably the best disability pension lawyer in New York today.  The decision was  front page news on the cover of the New York Law Journal. Click here to see the 24 page decision that will hopefully result in the widow receiving all the 9/11 death pension benefits she deserves .

Jackie Kaht Fernandez has been fighting the New York Fire Department Pension Fund for 9/11 World Trade Center (WTC) death benefits for almost 10 years.  Her late husband, Lt. Cruz Fernandez, died suddenly on July 14, 2006 of a 9/11 related medical condition.  Lt. Fernandez was a “First Responder” who worked at Ground Zero from September 11, 2001 through the next 25 days, sometimes as often as 15 hours per day. Prior to his untimely death at age 52, Lt Fernandez had completed nine marathons.

The World Trade Center Law 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 provided by competent evidence”.

Once an applicant establishes that the 9/11 hero worked the requisite number of hours at Ground Zero, the “World Trade Center Presumption” places the burden on the New York City Fire Department Pension Board to show that the applicant’s qualifying injury was not incurred in the line of duty. The significance of the presumption is that unlike ordinary Accidental Disability Retirement applicants, first responders need not submit any evidence – credible or otherwise – of causation to obtain the enhanced pension benefits.

If a determination is made, even post retirement, that the applicant is disabled by a
qualifying WTC condition, it will be presumed unless rebutted, that the disability was
sustained due to a work-related accident, thus entitling the applicant to WTC disability pension
benefits. The New York State legislature created the WTC presumption to benefit first responders because of the difficulty in establishing that non-trauma conditions could be traced to exposure to the toxins present at the WTC site in the aftermath of 9/11.

Lt. Fernandez was followed medically by the New York City Health Department, as were all responders to 9/11 in the early days following that event, to determine the effects of exposure to the toxicity of burning metal, debris from explosions, combustion products in the resulting plume, which were composed of construction materials, paint both leaded and unleaded, and partially burned jet fuel, plastic, cellulose and other materials. In addition, it was determined that First Responders had poor safety equipment including a lack of appropriate masks while breathing.

Ms. Fernandez’ attorney for over nine years, Chet Lukaszewski  submitted medical evidence showing that microscopic slides of Lt. Fernandez’ lungs indicated that the he had substantial anthracosis (an accumulation of smoke or coal dust in the lungs), and that although it had been several years since his retirement, and five years since the 9/11 event, the he still had considerable material in his lungs.  Lt. Fernandez’ doctors opined that “workers at the 9/11 site breathed highly toxic substances for a long time after the attack itself ~ toxic substances including dust, mercury, asbestos and PCBs.

The Court found that the Pension Board’s denial was irrational by stating that “anthracosis” is common finding in urban dwellers.  That’s news to me. According to the Pension Board, move out of NYC before its too late!

The Court found that the Medical Board provided no authority of any kind for there determination that
Lt. Fernandez did not die of a qualifying WTC illness, and provided no credible evidence to
support their findings.

Finally, Justice Richard Velasquez found the actions of  NYC Fire Department Pension Board ignored the orders of the Appellate Division, Second Department, and his Court, in that the key facts and evidence were once again ignored, and the determination to deny the widow’s application for WTC death benefits was once again arbitrary, capricious, unreasonable, unlawful, biased and contrary to theprovisions of laws, ordinances, rules and regulations. This is not the first time Chet Lukaszewski has beat the Pension Board on this same claim.

Bottom Line – the New York Fire Department Pension Board was appropriately “taken to the woodshed”. Let it be a lesson to all New York Pension Board’s in the future treat 9/11 heroes fairly.