Firefighters Will Get 2nd Shot At Disability Pay

By RICHARD STEIER

A Brooklyn Supreme Court Justice has ordered the Fire Department Pension Fund's Medical Board to reconsider its decision to deny accident-disability pensions to two Firefighters who sustained lung damage at Ground Zero, stating that it did not produce sufficient justification for its ruling.

Justice Jack M. Battaglia noted that the Medical Board finding contradicted the conclusion of an FDNY Medical Committee - including the department's top medical officer, Dr. Kerry J. Kelly - that Firefighters Lawrence J. Marley and Gerard Ledwith had become physically incapacitated by their lung problems.

Risk of Worsening

In separate rulings during 2003, the Medical Committee reached identical conclusions about the impact of the two Firefighters' exposure to toxins at Ground Zero during the rescue and recovery efforts following the attacks on the World Trade Center. Both were diagnosed as suffering from clinical asthma with airway hyperactivity, and the committee stated in each case, "Future exposure to dust, noxious fumes and/or toxins may precipitate life-threatening bronchospasm and/or may worsen the progression of his underlying disease."

But the Medical Board overruled those findings in two rulings in 2005. Each man, it stated, suffered from "mild intermittent asthma" that should not prevent either from performing full Firefighter duties.

No Scientific Proof

The latter conclusion, Justice Battaglia found, did not square with the National Heart, Lung, and Blood Institute's guidelines for dealing with asthma. According to those guidelines, "some patients with intermittent asthma experience severe and life-threatening exacerbations separated by long periods of normal lung function and no symptoms." Justice Battaglia said there was no evidence that the Medical Board physicians had greater expertise regarding either the performance requirements of firefighting nor the respiratory conditions of those who were at Ground Zero than Dr. Kelly and her top deputy, Dr. David Prezant, who is also part of the Medical Committee. He said the Medical Board had failed to offer scientific evidence or an articulated reason for overruling the Medical Committee's finding that Firefighters Marley and Ledwith met the criteria for an accident-disability pension.

He therefore annulled the board's finding, ordered that the case be resubmitted to the Fire Pension Fund's Board of Trustees, and asked that they get a new evaluation from the Medical Board before making a final recommendation.