News & Information

Judge Blasts FDNY for Denying Line-of-Duty Pension

The FDNY medical and pension boards acted in bad faith by denying benefits for nine years to the widow of a Sept. 11 responder, a State Supreme Court Justice ruled in a sharply-worded March 22 opinion. Brooklyn Justice Richard Velasquez granted Jackie Fernandez retroactive line-of-duty death benefits for her husband, retired Fire Lieut. Cruz Fernandez, who died in 2006 after collapsing suddenly while playing in shallow water with a nephew. The fire officer had suffered a series of typical World Trade Center ailments after spending 25 days amid the wreckage of the attacks.

The Justice also awarded interest on the payments, though Ms. Fernandez had not sought it.

Lights Into Boards

He wrote that since 2007, the boards had “continuously failed” to comply with the state law requiring that first-responder illnesses be presumed Sept. 11-related. The city had not “produced any credible evidence at all” that the Lieutenant’s death was unrelated, Justice Velasquez said.

Ms. Fernandez praised the decision, recalling her hurt upon being denied the benefits.

“This is his legacy. How dare they tell his children and his grandchildren that he’s not a 9/11 hero?” she said. “Who does that? Do they have a conscience?”

Lieutenant Fernandez had run nine marathons before Sept. 11, and the Justice wrote that “by all accounts, it is undisputed that he was in excellent physical condition” at the time. He and his firefighters arrived at the Trade Center minutes after the attacks. Ms. Fernandez later heard from colleagues that her husband led his firefighters on a walk over the Brooklyn Bridge after their rig could not make it across. People were already streaming away from Manhattan.

“He was the bravest man I knew,” one Firefighter told her. “We were all afraid to go across the Brooklyn Bridge…He gave us the pep talk. He said, ‘I will lead if you will follow.’”

Lieutenant Fernandez some­times put in 15-hour days at the site, including the early days when masks were hard to come by.

Symptoms by Early 2003

By January 2003, he’d begun showing the classic symptoms of 9/11-related illness. Difficulty swallowing led to a diagnosis of chronic acid reflux, and he also developed difficulty breath­ing, sinus and eye problems, according to his medical reports. His dentist also said he appeared to have a damaged immune system. A rapid progressive gum disease led to the removal of some teeth.

In July 2006, the Lieutenant died in shallow water on a beach vacation while he and his 11-year-old nephew were lying on boogie boards. The child reported that his uncle had became unresponsive and began foaming at the mouth before he slid off the board and finally slipped under the water.

An initial autopsy report listed the cause of death as accidental drowning. But after receiving more information, the local medical examiner wrote that the firefighter had a heart condition and “abundant” anthracosis—coal dust in the lungs. The report was later amended again to show the cause of death as drowning due to coronary artery disease and mitral valve prolapse.

Three doctors reported that Lieutenant Fernandez likely died from a World Trade Center-related condition, and other physicians documented that he had several 9/11-related illnesses.

The pension and medical boards, however, repeatedly denied the petition. Ms. Fernandez filed three Article 78 complaints; in a 2011 response, the boards said that anthracosis is “seen in the lungs of most urban dwellers, much less firefighters.”

Better Than Coal Miners

Mr. Fernandez’s lungs lack­ed the scarring they’d likely see in coal miners, the boards wrote, and the congestion and fluid in his lungs are “typically found in drowning victims.”

Justice Velasquez was harsh­ly critical of such findings, calling them “by their very nature arbitrary and capricious.” He objected that the officials produced no evidence that any lung damage or other illnesses were present before 9/11.

In his decision, he recited the list of chemicals in the Trade Center dust that led to the passage of the presumption law.

They include “the toxicity of burning metal, debris from explosions, combustion products in the resulting plume, which were composed of construction materials, paint both leaded and unleaded, and partially burned jet fuel, plastic, cellulose and other materials,” he wrote.

The boards have until May 2 to appeal, Ms. Fernandez said, but she begged them not to.

“It’s time to let this rest,” she said, recalling the “overwhelming” financial burden she’d taken on by fighting the ruling. A flight attendant, she sold her house and worked double shifts to pay legal fees.

‘Ethically Wrong’

“My husband told me that they will always take care of you if something happens to me,” she said. “And here nine years later, I am still fighting for his legacy. It’s wrong. It’s ethically wrong.”

Her lawyer, Chet Lukaszew­ski, is hopeful that the city won’t appeal again. Justice Velasquez ordered that the benefits be paid rather than remanding the issue back to the medical board, as he did when he handled the case in 2013.

“I think the Judge’s finding bad faith and awarding sanctions sends a clear message as to how Funds should and should not act, especially in 9/11 cases,” Mr. Lukaszewski said. “We are very hopeful they finally wave the white flag.”

He added, “I was happy that he made clear that Mrs. Fernandez is a widow who lost the love of her life, and that Lieutenant Fernandez was a 9/11 hero; I think that can get lost sometimes in the paperwork of lawsuits.”

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