A New York appellate court on Thursday reversed the State Workers’ Compensation Board and awarded death benefits to a court employee who contracted cancer years after participating in the rescue and recovery effort after the World Trade Center attack.
A panel of the 3rd Department of the Appellate Division said in its opinion that the board erred when it discounted testimony by Dr. Lester N. Ploss that contamination at the site of the terrorist attack caused the cancer that killed Patrick M. Murphy.
“In our view, the medical opinion of Ploss was neither speculative nor a general expression of possibility and demonstrated that decedent’s exposure at Ground Zero and the World Trade Center site was a contributing factor to his demise for purposes of causation,” the appellate panel said.
Murphy worked as a law enforcement officer for the New York State court system. After the terrorist attack on Sept. 11, 2001, he was assigned to work on a “bucket brigade” at the World Trade Center site that searched for the remains of people killed and recovered body parts.
Murphy worked ten 12-hour shifts at Ground Zero, according to court records. He slept on cots near the wreckage between shifts.
In 2017, Murphy was diagnosed with a squamous cell carcinoma in his lungs. He died in March 2020. His wife Theresa Murphy filed a claim seeking workers’ compensation benefits from the New York State Insurance Fund.
The New York State Legislature amended the Workers’ Compensation Law in 2015 to add Article 8-A, which allowed workers who participated in the World Trade Center rescue and recovery effort to file claims even if the usual statute of limitations had passed.
Ploss testified that Murphy’s death was 80% related to exposure to toxins at Ground Zero, with 20% of the cause attributed to smoking cigarettes.
An administrative law judge found that Ploss’ testimony was “quite persuasive” and awarded the widow death benefits plus $96,315.08 in disability benefits.
NYSIF appealed to the State Workers’ Compensation Board. The insurer said in its pleading that Ploss had reported that Murphy had smoked for only five years, when in fact he smoked for 40. What’s more, Murphy was also exposed to smoke and fumes while working for 23 years as a volunteer firefighter, the carrier said.
The board panel reversed the administrative law judge’s ruling, saying Ploss had failed to “cite to any studies or other evidence to sufficiently explain his opinion regarding causation.”
The Appellate Division, however, said that NYSIF had an opportunity to raise the issue of the lack of citation to scientific studies at trial, but did not.
“Ploss further testified that the toxic exposure at Ground Zero that decedent experienced was intense and concentrated given his prolonged exposure and lack of respiratory protection and that such exposure would have resulted in damage to decedent’s bronchial tree and lung tissue,” the opinion says.
John Clennan, a Ronkonkoma attorney who represented Theresa Murphy on appeal, said the Workers’ Compensation Board “invented a contention” that NYSIF never argued. He said board decisions denying benefits to workers who participated in the World Trade Center rescue and recovery are “routine.”
“They make it very difficult for these people to get a dime,” he said. “They are extremely harsh on World Trade Center cases.”
Court records show that appellate division reversals of board decisions to deny benefits under Article 8-A are not uncommon.
On Dec. 30, 2021, the Appellate Division annulled a portion of a decision by the state comptroller that denied accidental disability retirement benefits to former New York City police officer Raphael Fragola, who was diagnosed with major depressive disorder and post-traumatic stress syndrome.
On June 17, 2021 the Appellate Division overturned a board ruling that determined New York State trooper Christopher R. Bodisch, who worked at a vehicle checkpoint near Ground Zero, was not covered by article 8-A.
And on July 9, 2020, the Appellate Division reversed a decision by the board to deny benefits to David M. Renko, a state police employee who cleaned automobiles that were coated in World Trade Center dust.
About the photo: Flowers adorn the names of people who were killed during the attacks on the World Trade Center on Sept. 11, 2001, as families gather at the National September 11 Memorial in New York on the 20th anniversary of the attacks, Saturday, Sept. 11, 2021. (Craig Ruttle/Newsday via AP, Pool)
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