Matter of Concannon v Board of Trustees of the NY Fire Department Pension Fund, Subchapter II
Petitioner, a retired FDNY firefighter and World Trade Center 9/11 first responder, brought an Article 78 proceedingto grant him a line-of-duty accidental disability pension, with the WTC presumption, retroactive to September 1, 2010, pursuant to NYC Administrative Code 13-353.1
Petitioner had skin melanoma and was treated from 1999 to 2000, then returned to full duty. He also worked as a first responder at the WTC from September 11, 2011 to June of 2002. In April of 2008, Petitioner was then diagnosed with Stage IV metastatic melanoma of his left lung.
Respondent’s Medical Board initially recommended petitioner for the ADR pension, pursuant to the WTC presumption but, it was remanded on September 1, 2010 for a new determination. After reviewing petitoner’s oncologists affidavit which stated “it is impossible to determine with any degree of medical certainty that the melanoma discovered in 2008 pre-existed the patient’s exposure at the World Trade Center site.” The Medical Board then determined that “in view of the tendency of melanoma to metastasize long after the initial diagnosis … this member’s recent diagnosis of a melanomic mass is indeed related to his original melanoma diagnose prior to the World Trade Center event.” Therefore the Medical Board denied petitioner’s ADR pension, with the WTC presumption.
“The failure of the Medical Board to explain why it changed its previous decision violated the principal that its decision “must be set forth in such manner as to permit adequate judicial review.”” The Court found that the Board of Trustees did not have “credible evidence sufficient to support its finding that the WTC presumption had been overcome. The Medical Board’s determination that since a melanoma has a “tendency” to mestastasize it must have mestastasized in petitioner’s lung, is pure speculation and not a substitute for the “credible evidence” needed to rebut the WTC presumption.” Therefore, Respondent’s determination denying Petitioner’s application for ADR was annulled and the Petitioner was granted ADR pension, pursuant to WTC presumption, retroactive to September 1, 2010.