Joel Stashenko - New York Law Journal - March 01, 2011

A widow who claims that the drowning death of her husband, a former New York City firefighter, was caused by toxins he breathed in during cleanup operations at the World Trade Center in the wake of the Sept. 11, 2001, terror attacks will get another opportunity to demonstrate that she is entitled to accidental death benefits.

A four-member panel of the Appellate Division, Second Department, held that the New York City Fire Department Pension Fund Subchapter 2 Medical Board had provided an inadequate rationale for several times recommending denial of a petition for benefits brought by the widow of Lt. Cruz A. Fernandez.

"Although the Board of Trustees [of the pension fund] is entitled to rely on the report and recommendation of the Medical Board, the proceedings should disclose the reason for the denial, and the determination must be set forth in such manner as to permit adequate judicial review," the appeals court determined in Matter of Fernandez v. Board of Trustees of N.Y. Fire Dept. Pension Fund, Subchapter 2, 26232/08. "Under the circumstances of this case, the explanation by the Medical Board was insufficient."

The Second Department ordered the pension fund trustees to send the case back to its medical board to specifically address medical evidence indicating that Mr. Fernandez's drowning was precipitated by his heart condition, which was the result of respiratory distress caused by responding to the 9/11 attacks.

Mr. Fernandez was 50 when he drowned in July 2006 in shallow water on an Atlantic City beach. Despite evidence of a heart condition, the pension fund medical board explained only that it had reviewed evidence submitted by his widow, Jackie Kaht Fernandez, and found it "noteworthy that there is evidence that the member died from drowning" and that it "did not feel that the drowning appears to be secondary to the World Trade Center exposure."

Ms. Fernandez submitted letters from a chemist and a biochemist along with her petition for accidental death benefits that addressed the likelihood that damage to the firefighter's lower respiratory tract from inhaling toxins in the wreckage of the towers weakened his heart and ultimately caused him to drown.

After being turned down once by the pension medical board and board of trustees, Ms. Fernandez submitted an amended death certificate from Broward County in which Mr. Fernandez's cause of death had been changed from "Drowning" to "Drowning precipitated by prior heart condition."

The medical examiner also found Mr. Fernandez had abundant anthracosis in his lungs. Anthracosis is a deposit of soot.

Ms. Fernandez also submitted a letter from a toxicologist who said there was a reasonable certainty that World Trade Center toxins had weakened Mr. Fernandez's cardiovascular system and caused him to drown.

But the medical board's recommendation remained unchanged, and the pension board again denied the request for benefits.

The Second Department panel noted that to avoid a determination that the decision had been arbitrary and capricious, the pension fund had to show that it had been backed by some "credible" evidence.

But the court said it could not tell how much weight the medical board gave to the wife's medical evidence and it ordered the board to explain its reasoning.

Justices William F. Mastro, Joseph Covello, Daniel D. Angiolillo, and Plummer E. Lott, joined in last week's unsigned decision.

Their ruling reversed a determination by Brooklyn Supreme Court Justice Lawrence S. Knipel denying Ms. Fernandez application for accidental death benefits.

Mr. Fernandez retired in November 2002 and took a pension option that paid him benefits through his death, but none thereafter to his widow.

Ms. Fernandez's attorney, Chet Lukaszewski of Lake Success, said she is now seeking accidental death benefits that will pay her Mr. Fernandez's full pay for the rest of her life.

Under §13-353.1[3] of the New York City Administrative Code, a firefighter who dies of a qualifying World Trade Center condition "shall be deemed to have died as a natural and proximate result of an accident sustained in the performance of duty" unless the medical board can prove otherwise by "competent evidence."

Mr. Lukaszewski said Ms. Fernandez estimates that her husband made "upwards of $100,000" during his last full year with the fire department. He was a lieutenant in a station house in Bedford-Stuyvesant in Brooklyn.

"Ms. Fernandez said that she always said her husband was the ultimate firefighter," Mr. Lukaszewski said. "He never turned his back on anyone who needed help. If this decision stands…it is going to set a precedent that is going to help future first-responders if they have a health issue."

Carolyn Wolpert, deputy chief of the pension division in the New York City Corporation Counsel's office, said she does not believe the link between Mr. Fernandez's death and exposure to toxins has been medically established.

"While we are disappointed with the decision, we are confident that once the case is remanded to the pension board we expect to prevail," Ms. Wolpert said yesterday in an interview.