N.Y. Police Officer's 9/11 Claims Come Up Short

New York, NY (WorkersCompensation.com) -- The officers and first responders at Ground Zero on 9/11 are widely recognized as heroes who risked -- and in some cases sacrificed -- their lives to save others. 

Nonetheless, as a police officer learned in In the Matter of the Claim of Charles Mascali v. Town/Village of Harrison, No. 533036 (N.Y. App. Div. 03/17/22), attempting to connect an injury to what happened on 9/11 still requires satisfying the standards of workers' compensation law.

9/11, Compensability

In 2017, the officer filed a claim for workers' compensation benefits, alleging that he experienced an injury from inhaling dust and toxins on September 11, 2001, at the World Trade Center site.

A Workers' Compensation Law Judge established the claim for work-related chronic pulmonary disease, gastroesophageal reflux diseas, dyspnea, and shortness of breath. The Workers' Compensation Board reversed the decision on administrative reveiw, finding that the medical evidence wasn't enough to connect the officer's injuries to his employment. The officer applied for full board review, but the board denied his application. As a result, the officer appealed to court.

Board's Decision

In New York, for a work to obtain review or reconsideration by the full board, he must demonstrate that newly discovered evidence exists, that there has been a material change in condition, or that the board improperly failed to consider the issues raised in the application for review in making its initial determination.

In this case, the court highlighted that the board rejected as "unsupported and conclusory" the opinion of the officer's medical expert that the officer's condition was causally related to his work at the World Trade Center site.

Although the officer sumbitted another report to the board in an attempt to bolster his case, the court explained that it didn't meet the legal standard of overturning the board's decision.

"The new report did not indicate a material change in condition but merely restated the expert's finding of a causal relationship, an opinion that the board had considered and rejected in its initial determination," the court explained. "Under these circumstances, it was not an abuse of discretion or arbitrary and capricious for the Board to deny claimant's application for reconsideration and/or full board review."

As a result, the board's decision stood.

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