City Fails To Rebut ‘WTC Presumption’ In Cancer Claim Of Officer’s Widow

Frank Macri had been a New York City police officer for six years as of September 11, 2001, and was a first responder during the terrorist attacks. When the first tower of the World Trade Center collapsed, building debris struck Macri, knocking him to the ground and causing lacerations to his left arm, right leg, and both corneas. He inhaled significant quantities of dust and smoke caused by the collapsing building. Macri received treatment for his injuries that day at New York University Medical Center. As part of that treatment, he underwent a chest X-ray that revealed no evidence of cancer in his lungs.

Subsequent to September 11, Macri performed approximately 350 hours of duty in the rescue, recovery and cleanup operations after the attack. He worked at Ground Zero until October 1, 2001, and at Fresh Kills Land Fill from November 1, 2001 to early January 2002.

In August 2002, Macri was diagnosed with a malignant lytic sacral lesion and lung carcinoma. Macri underwent treatment for this condition but an MRI conducted on December 23, 2003 revealed at least three metastases to his brain. By January 2005, Macri’s “non-small cell lung cancer” had metastasized to his brain, liver, lungs and bones, finally taking his life on September 2, 2007.

Under a New York statute, “if any condition or impairment of health is caused by a qualifying World Trade Center condition as defined in section two of the retirement and social security law, it shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident not caused by such member’s own willful negligence, unless the contrary be proved by competent evidence.” Since cancer is one of the conditions listed in the law, the workers’ compensation claim filed by Macri’s widow turned on whether the City had rebutted the presumption that his cancer was caused by his response to the World Trade Center.

An appeals court rejected the City’s arguments that it had rebutted the presumption, and upheld the claim of Macri’s widow. The Court ruled: “Here, in addition to Macri’s identified medical records, the Medical Board relied on unidentified ‘doubling time’ literature which was not based on the responder population to support its conclusion that his cancer was a preexisting condition and not WTC related. However, that conclusion is not supported by credible evidence.

“There is no question that Macri’s temporal duration at Ground Zero and Fresh Kills far exceeded the minimum 40 hours required by the law to invoke the WTC presumption. Moreover, there is nothing in the medical records, other than the unidentified ‘doubling time’ literature, to indicate that his cancer preexisted 9/11. Indeed, the chest X-ray taken on 9/11 showed no indication of any pulmonary cancer.

“While it is true that Macri’s cancer was a highly aggressive form of cancer, that fact, standing alone, does not rebut the WTC presumption. Indeed, Macri’s oncologists stated that his diagnosis of stage 4 cancer ‘at such a young age could be ascribed to 9/11 type exposure,’ and that the rapid growth and spread of the cancer made it more reasonable than not, given his nonsmoker status and health prior to 9/11, that the cancer was contracted because of his exposure to the high levels of carcinogens known to be present at Ground Zero. The Medical Board dismissed without addressing this evidence and did not examine the basis for the conclusion that exposure to the known toxins at the WTC site was the proximate cause of Macri’s admittedly unusually aggressive cancer, a significant omission which undermines its conclusion.

“There is no evidence to support the Medical Board’s conclusion that Macri’s cancer was preexisting. Indeed, there is evidence that just the opposite was the case. Unlike Maldonado, Macri’s time at various WTC sites was extensive. His oncologists provided a strong, clearly articulated, experience-based medical opinion, finding that the etiology of his cancer led to the conclusion that it was more reasonable than not that his cancer was the result of his duty at WTC sites.”

Macri v. Kelly, 2011 WL 6757484 (N.Y.A.D. 2011).