Judge Tells Pension Board To Reconsider 9/11 Case; Cop Links It to Hearing Loss
By TOMMY HALLISSEY
A Manhattan State Supreme Court Justice has ordered the Police Pension Fund Medical Board to further examine a 9/11 responder's claim for accident disability insurance because of hearing loss suffered at the World Trade Center.

JEFFREY GOLDBERG: Ruling a step forward.

John Hamilothoris, who joined the NYPD in 1991, was at the Trade Center when the second plane crashed. He heard the roar of the jets and the crash of both buildings. He stayed until about 1 p.m. that day, when he left with breathing difficulties from dust and debris.

Physical Ailments Grew

The Police Officer filed a line-of-duty injury report the next day because of a respiratory problem. In March 2004, Mr. Hamilothoris requested an amendment to the report to add hearing loss. He said he experienced ringing in the ears after 9/11, but did not report it because it was not constant or severe. He felt dizzy in July 2003 and went to a doctor, who found in a report that the officer had ringing in the ear and dizziness. A month later, Mr. Hamilothoris told another doctor about episodes of spinning, dizziness and light-headedness.

In September 2003, the officer went to see an NYPD neurologist, who noted "recurrent episodes of vertigo with persistent left ear tinnitus since July 2003." In June 2004, Police Commissioner Raymond W. Kelly applied on behalf of the officer for ordinary disability retirement benefits.

An extension of the World Trade Center Bill introduced by Governor Paterson two months ago to extend disability benefits to 9/11 workers does not specifically list hearing loss as a condition eligible for disability, said veteran attorney Jeffrey Goldberg, who represents Mr. Hamilothoris. "They're construing the World Trade Center Bill very narrowly. People who worked there did it unselfishly. They deserve the benefit of the doubt."

'Incapable of Duties'

A June 2004 Medical Board report said that after physical examination of the officer "he could not stand with his eyes closed and feet together without swaying and possibly falling." It found he was incapable of his duties as a Police Officer, but recommended ordinary disability retirement. He retired in November 2004 with half-pension.

In October 2004, Mr. Hamilothoris filed an application for accident disability retirement based on hearing loss resulting from loud noise at the World Trade Center on 9/11. The Medical Board in April 2005 recommended disapproval of his bid for a tax-free pension equal to three-quarters of his final salary.

The Board of Trustees three times after that sent the case back to the Medical Board for further review. Each time it was disapproved. "The Medical Board in their infinite wisdom said he had a hearing condition not resulting from the World Trade Center," said Mr. Goldberg.

In August 2007, after a tie vote, the Board of Trustees adopted the Medical Board's recommendation to deny the officer accident disability.

The matter was brought before Supreme Court Justice Walter B. Tolub, who ruled, "neither the Medical Board nor the Board of Trustees sufficiently articulated the basis for finding that [the officer's] hearing loss was not a result of a line of duty injury to allow for judicial review." He said the Medical Board needed to clarify the basis for its conclusion that hearing loss was not 9/11-related.

The case was sent back to the Medical Board with instruction to follow the letter of the law in determining disability. Mr. Goldberg said the decision represented a victory, even though the officer has not yet been awarded disability benefits. "This is a good case for the uniformed members who served on 9/11," he said. "Getting the court remand is what I hoped for. The judge addressed the major issue that the Pension Fund had no legal basis to deny this award."