NY Court Concludes Cancer Diagnosis Not Disabling

The Appellate Division of the New York Supreme Court has concluded that despite a firefighter having cancer, and despite cancer being presumed to be job-related, he is not entitled to accidental disability retirement benefits because his disability is not related to cancer. The firefighter, Urho Engels, took a service retirement in April 2016, but shortly thereafter sought accidental disability retirement benefits.

Engels claimed he was permanently disabled as a result of prostate cancer. The New York State and Local Retirement System denied his request, concluding that despite him being permanently disabled his incapacity was not related to his cancer diagnosis. Engles filed an Article 78 proceeding to challenge the determination.

The court upheld the denial, explaining as follows:

• Where… a firefighter sustains a partial or total disability or death as the result of certain cancers, including prostate cancer, it shall be presumed absent competent evidence to the contrary that “such disability or death (a) was caused by the natural and proximate result of an accident, not caused by such firefighter’s own willful negligence, and (b) was sustained in the performance and discharge of duty.”
• Petitioner (Engles] contends that respondent [NY State & Local Retirement System] erred in concluding that his conceded incapacitation was not attributable to his diagnosed prostate cancer and, further, that the Retirement System failed to rebut the statutory presumption. We disagree.
• Petitioner testified that his prostate-specific antigen levels started to rise in 2009 or 2010 and that he began experiencing urinary issues in 2011.
• In 2014, petitioner started treating with a urologist who prescribed medication to assist petitioner with the urinary issues he experienced while on duty, as his fellow firefighters could not wait three to four minutes for petitioner to finish going to the bathroom before responding to a service call. Petitioner took a service retirement in April 2016.
• Thereafter, following a biopsy, he was diagnosed with prostate cancer in June 2016.
• However, no treatment was prescribed, as cancer was detected in less than 5% of the biopsied tissue. Instead, petitioner’s urologist began to actively monitor the growth of cancer cells through biopsies conducted every six months.
• As to the impact of such diagnosis, petitioner’s treating physician stated that, “If [petitioner] were still a fire department employee, [his] recommendation would be that [petitioner] give notice and discontinue that employment as that type of work could worsen his condition.”
• Contrary to petitioner’s assertion, such statement falls short of establishing that his disability was in fact the result of prostate cancer.
• Indeed, the record makes clear that petitioner’s symptoms, as well as the corresponding impact that such symptoms had on his work as a firefighter, predated petitioner’s cancer diagnosis by a number of years.
• Substantial evidence also supports the alternative ground for the denial of petitioner’s application; namely, that the medical report submitted by the Retirement System’s expert was sufficient to rebut the statutory presumption.
• The Retirement System’s expert agreed that petitioner’s urinary symptoms would make it difficult for him to perform his firefighting duties in an outside setting, i.e., responding to calls for service, and acknowledged that petitioner was permanently disabled from performing his duties as a firefighter.
• The expert noted, however, that petitioner’s urinary symptoms “existed many years before the diagnosis of cancer,” had not been well treated and had not worsened since said diagnosis, and that such symptoms were “more frequently associated with an enlarged prostate rather than cancer.”
• For these reasons, the expert attributed petitioner’s disability to his ongoing urinary issues as opposed to his early-stage prostate cancer.
• Upon reviewing the record, we are satisfied that substantial evidence supports the finding that the foregoing report was sufficient to rebut the statutory presumption, thereby warranting the denial of petitioner’s application for accidental disability retirement benefits.
• Accordingly, respondent’s determination is confirmed.

Here is a copy of the decision: