Despite New Laws

Ill Firefighters Still Can't Win Disability

By GINGER ADAMS OTIS

Amendments to the World Trade Center Disability Law signed by Governor Pataki two weeks ago greatly expanded the ways in which active and retired uniformed workers can apply for pensions. But the changes weren't sweeping enough to help 25 firefighters who have been deemed too sick to work by Fire Department doctors, yet not disabled enough to retire by the 1-B Medical Board.

'WE'RE READY': Attorney Chester P. Lukaszewski, of the Jeffrey L. Goldberg Law Firm, says many city firefighters are caught in a 'legal limbo' that won't let them retire or return to full-duty. Twenty-five firefighters represented by the firm have filed a discrimination lawsuit against the Fire Department's 1-B Medical Board, alleging that their rights under the Americans with Disabilities Act were violated.

Saying they are held in "legal limbo," the firefighters Aug. 25 began proceedings in a Federal discrimination case they filed last October against the 1-B Medical Board, alleging that its members have violated the Americans with Disabilities Act by refusing to acknowledge their medical problems.

A Kind of Deterrent?

The ADA makes it illegal to deny workers employment or participation in jobrelated benefit programs because of a disability. The firefighters, who all suffer lung-related illnesses related to 9/11, argue that the 1-B Board is blocking them from their three-quarter, tax-free disability pensions in an effort to discourage a rash of similar applications.

Attorney Chester P. Lukaszewski, who works for the Jeffrey L. Goldberg Law Firm representing the firefighters, said the initial hearing was to set an agenda for upcoming depositions, discovery and jury selection.

"We are ready to go; we don't see any reason to drag this out any further and time is of the essence for these guys - they're sick, and they need this dealt with as soon as possible," he said during a phone interview the day before the court convened. "We're asking for the minimum amount of time that can be allotted for every phase through to trial."

Stonewalled By Board

The firefighters first filed their discrimination claim with the U.S. Equal Employment Opportunity Commission. Initially, said Mr. Lukaszewski, the EEOC investigators spent the maximum 180 days examining each claim before issuing a right-to-sue letter. But after realizing that circumstances in most of the claims were similar, the EEOC moved more quickly.

"We were in constant contact with investigators as they looked over these claims. They told us that they made every effort to meet with the 1-B Board and other parties involved but were turned away each time. In the end, when we would file a claim and say, 'This claim mirrors claim A, already submitted to your office,' they'd say okay, and write the letter," said Mr. Lukaszewski.

As first reported in The Chief-Leader in October 2005, all 25 plaintiffs have over the past four years developed respiratory illnesses of various types. Some of them were first-responders on 9/11. Others were at Ground Zero in the days after the attacks to help with rescue and recovery.

They've all been examined by Fire Department doctors and declared unfit for duty. But the 1-B Medical Board, made up of equal parts city representatives and union representatives, has denied their lung-related disability claims.

Broadened Criteria

The original WTC Disability Law signed by Governor Pataki in June 2005 amended the existing pension rules for each department to add a special category for workers who had undergone a physical examination upon joining the force and spent a minimum of 40 hours at Ground Zero, either on 9/11 or during the recovery phase.

Workers who meet those requirements and fall ill with certain sicknesses and symptoms known to be related to 9/11 are granted a presumption as to the cause of the medical problems - but not a presumption of disability. Disability pensions can only be granted with approval from the 1-B Medical Board.

"That's the big gray area, the limbo that these guys are falling into," said Mr. Lukaszewski. "The FDNY doctors know they can't put firefighters with asthma, Reactive Airways Disease and other lung problems back on the job - it would only take one time for something to go wrong or one of them to die at a fire and the FDNY would face a slam-dunk lawsuit. But the department is also not in charge of granting disabilities, so these guys are stuck with nowhere to go."

Pensions Declining The 25 plaintiffs are currently on light duty, which has its own set of problems for them in terms of affecting their pension allowances when they retire. Pension earnings are calculated using an applicant's last year of earnings, or the best three years of the last five prior to retiring on disability.

While on light duty, firefighters work 9-to-5 tours, greatly reducing their gross pay due to lack of overtime.

Additionally, the firefighters have taken issue with the fact that the 1-B Medical Board changed its method of testing for lung disease a few years after 9/11. Previously its doctors used only the Methacholine test - the definitive medical exam for proving hyper-reactivity in lung tissue.

Then the board added the Pulmonary Function Test, which measures a person's breathing ability on a given day at a certain time. It doesn't measure how the lungs react to different stimuli.

Not a True Gauge

"They give the firefighters a test that is essentially, 'blow into this tube,' after they've been sitting at rest in an office that's clean and sterile," said Mr. Lukaszewski. "It doesn't measure what it's like for them when they are around smoke, wearing 60 pounds of equipment on a hot day - things they would be required to do if they really were able to return to full-duty, which is what this board contends."

An FDNY spokesman declined to respond to questions about the change in testing methods, saying the department doesn't comment on issues in litigation. One source said the board changed the test because it suspected some firefighters had smoked cigars or inhaled hair spray prior to taking it, increasing their chances of a reaction to the Methacholine, which would give them a false positive.

"If that is true, and we don't know if it is or isn't," said Mr. Lukaszewski, "the board has to understand that it's denying disability pensions to people who really need them because a few members out there cheated."