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May 7, 2004
Judge’s Ruling
Cop Gets Pension For ‘WTC Cancer'
By Mark Daly
A state judge awarded a higher-paying pension to a Police Officer
last month after concluding that the officer’s throat cancer
was most likely exacerbated by his exposure to airborne toxin at
the World Trade Center site.
Manhattan Supreme Court Justice Kibbie F. Payne ruled that he could
grant former officer Richard K. Lahm a tax-free accidental disability
pension worth 75 percent of his salary “as a matter of law”
because of a critical omission by the Police Pension Fund.
Cop Cited Experts
The fund’s trustees okayed a standard or “ordinary”
disability pension for Mr. Lahm without referring to any medical
evidence to contradict the officer’s own experts, the judge
said.
Mr. Lahm filed for retirement in April 2002 after being diagnosed
with Stage 3 cancer of the right tonsil and soft palate. He had
responded to the World Trade Center terrorist attacks and worked
at the site during the cleanup afterward, Justice Payne said in
his written opinion.
The NYPD’s Chief Surgeon rejected Mr. Lahm’s application
for an accidental disability pension, saying there was “no
logic to claim that” the officer’s cancer ‘was
aggravated by WTC exposure.”
‘Toxic Exposure’
In his submission to the pension system’s Medical Board,
Mr. Lahm bolstered his claim with reports from an otolaryngologist
and a radiological oncology specialist, who each said it was probable
that the cancer had been caused or exacerbated by “toxic exposure,”
the judge wrote. The Medical Board disagreed and forwarded the case
to the pension board as an ordinary, or off-duty, disability case.
The union and management representatives on the pension board were
evenly split on upgrading the pension, so Mr. Lahm retired with
a taxable pension worth half his salary.
Justice Payne ruled that since the only available medical evidence
came from Mr. Lahm’s doctors, prior case precedents required
him to award the cop the higher-paying pension.
The city is reviewing its legal options in the case, Law Department
attorney Jay Dean said in a statement.
“We are disappointed in the court’s ruling because
the court based its decision on materials outside the administrative
record, and because the court substituted its judgment on a medical
issue which was properly decided by the Police Pension Fund’s
Medical Board,” Mr. Dean said.
First Cancer Claim
Mr. Lahm’s case is believed to be the first cancer claim
to arise from the World Trade center terrorist attacks. The Patrolmen’s
Benevolent Association thinks it won’t be the last.
“It definitely is something to be considered in the future,”
said Joseph Alejandro, the PBA’s treasurer and its representative
on the pension system’s Board of Trustees.
Justice Payne acknowledged in his decision that the NYPD’s
Chief Surgeon found it improbable that a stage-3 tumor could have
developed in a matter of months. The judge added, however, that
previous court decisions allowed the officer to claim an accidental
injury on the grounds that his World Trade Center assignment had
accelerated his undiagnosed illness.
Tonsil cancer accounts for less than 0.6 percent of the cancers
detected each year. Tumors are usually not diagnosed until they
have reached an advanced stage, which raises the risk that they
will spread. The disease is commonly associated with smoking and
heavy drinking, according to a July 2001 medical paper at the emedicine.com
Web site.
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