John Caher
New York Law Journal
2013-07-22

Suggesting that a city pension panel has given short shrift to a death benefits claim on behalf of a firefighter involved in post-9/11 recovery and cleanup operations, a judge in Brooklyn has ordered officials to take a close look at the medical evidence and reconsider the claim.

Brooklyn Supreme Court Justice Richard Velasquez' (See Profile) decision is the latest in a series of administrative and court opinions that have yet to resolve whether Jackie Kaht Fernandez is entitled to accidental death benefits.

Fernandez's husband, Lt. Cruz Fernandez, a fitness enthusiast and marathoner, drowned in shallow water on a Florida beach in July 2006. He was 50 years old. At issue is whether his death had any relation to his exposure to toxins at the World Trade Center following the Sept. 11, 2001 terrorist attacks.

Ms. Fernandez has claimed that her husband's death was directly attributable the attacks. But the New York City Pension Fund has repeatedly denied that Fernandez' death was causally related to his work. The fund's medical board rejected Fernandez' initial claim in 2007, and that determination was upheld by Brooklyn Supreme Court Justice Lawrence S. Knipel (See Profile). But Knipel was reversed by the Appellate Division, Second Department (NYLJ, March 1, 2011).

The Second Department directed the pension fund trustees to send the matter back to its medical board to specifically consider evidence that the firefighter's drowning was precipitated by a heart condition resulting from 9/11-related respiratory issues.

On remand, the medical board said the autopsy report was consistent with accidental drowning and that the widow's experts had failed to present credible evidence that Fernandez died as a result of a World Trade Center-qualifying lower respiratory disability. That resulted in an Article 78 petition, and a ruling by Velasquez that the board failed to refute—and perhaps did not even consider—evidence that Fernandez suffered from lung anthracosis attributable to his 9/11 work that weakened his heart and caused him to drown.

"[T]he court finds that the Medical Board's determination that Lt. Fernandez did not suffer from a lower respiratory condition and that his death was a simple drowning and, therefore, not causally related to said condition, was not supported by credible evidence and lacked a rational basis," Velasquez said in Fernandez v. Cassano, 16637/12. Velasquez said "it does not appear that the Medical Board considered all of the submitted medical evidence."

For instance, he said the board failed to address evidence that Fernandez exhibited signs of labored breathing just three weeks before his death and also failed to consider the reports of doctors suggesting that Fernandez suffered from WTC-qualifying respiratory conditions.

"Since it does not appear the Medical Board considered all of the submitted medical evidence, the matter should be remanded for new medical findings and reports by the Medical Board and a new determination by the Board of Trustees," Velasquez wrote.

Chester Lukaszewski of Lake Success represents the widow. He was not immediately available for comment.

Assistant Corporation Counsel Louise Lippin argued for the city defendants. A spokeswoman for the city law department said "we are disappointed by the ruling and are considering our legal options."