The Fire Department Pension Fund Medical Board has reversed a decision denying disability pensions to two firefighters who retired due to 9/11-related illnesses.
The Chief-Leader/Alana Marcu 'COULDN'T BE HAPPIER': Manhattan attorney Ed Marcowitz represented two firefighters who retired due to 9/11-related illnesses and had their disability pensions denied. A Brooklyn Supreme Court Justice remanded their case back to the Fire Department and the denials were recently reversed. The FDNY Medical Committee ruled in 2003 that two firefighters, Lawrence J. Marley and Gerard Ledwith, had suffered from clinical asthma with airway hyperactivity, but overruled those findings two years later, claiming that their illnesses did not prevent them from performing their duties. But Brooklyn Supreme Court Justice Jack M. Battaglia remanded the case this spring, noting that the Medical Board finding contradicted the conclusion of the Medical Committee.
Anguish is Over
"What a relief," said Mr. Marley, who retired in 2002 at age 46 after serving the department for 22 years. "Every week I was anguishing."
Ed Marcowitz, a Manhattan-based attorney who specializes in Fire Department employment cases, represented the two firefighters pro-bono.
"We represent a lot of firefighters," he said of his firm, Barasch, McGarry, Salzman and Penson. "This was just something that just touched a nerve with me."
The pension payments will be retroactive. One retired FDNY Lieutenant involved in a similar case claimed it was not uncommon for firefighters who left the job because of 9/11-related injuries to have their disability pensions denied.
'Bureaucracy Against You'
"I know plenty of other guys going through the same thing," he said, speaking conditioned on anonymity. "The bureaucracy, the odds are so stacked against you."
Robert Ungaro, a civil service disability attorney, noted that due to case law it was challenging for workers to get such decisions overturned.
"It makes it very, very difficult if the Medical Board has what's called credible evidence to support its findings," he said. "That can be as little as the opinion of one medical doctor. What has happened is, the World Trade Center bill has given presumption with respect to causality, but not with respect to the determination of disability, which has remained in the hands of the Medical Board. In Ed's case, he was successful in having a judge remand those two determinations back to the Medical Board, and that was significant because they were medical determinations, not legal determinations of causality."
Justice Battaglia had said the Medical Board failed to provide scientific evidence for overruling the Medical Committee's decision when he remanded the case.
Because overturning such a Medical Board ruling is so difficult, Mr. Marcowitz said, he considered the win a personal victory as well.
"I could not be happier for these guys," he said in an e-mail.