Matter of Colon v. Kelly

          Petitioner is the widow and beneficiary of a former Detective of the NYPD.  Petitioner brought proceedings under Article 78 seeking to annul the decision of The Board of Trustees of the Police Pension Fund that denied petitioner accidental death benefit. 

          Petitioner’s spouse performed “rescue, recovery, and clean up operations at Ground Zero for over forty hours” following September 11, 2011.  He was then diagnosed with esophageal cancer after doctors discovered a tumor, he then past away in August of 2003. 

          The Medical Board had denied the petitioner’s application for ADB stating that “based on the size of the tumor, Titus’ cancer predated his work at Ground Zero.” 

          Administrative Code of the City of New York requires that ADB is available to a widow of a deceased police officer when the death was caused by an accident in the line of duty and not the consequence of negligence by the deceased.  “WTC presumption” is available to any member of the NYPD that participated in the WTC “rescue, recovery, and clean-up” and later “dies from a qualifying World Trade center condition … unless the contrary can be proven by competent evidence.”  Administrative Code 13-252.1(3). 

          Respondents’ maintain that the Medical Board used its own expertise to conclude that “cancer grows over a period of years and not months.”  Respondent’s state that the deceased’s cancer couldn’t have been caused by exposure to WTC.  As well, that asbestos does not negatively affect esophageal cancer. 

          The Medical Board failed to provide any scientific evidence about its conclusion.  As well, they failed to discuss the likelihood that the deceased could have been exposed to other cancer causing substances that could have made his condition worse. 

          Petition is granted, the decision by the PPF to deny petitioner ADB is annulled and it is further ordered that the matter is remanded to a fresh Medical Board for a new determination.