By Greg Mason
Observer-Dispatch
UTICA, N.Y. — Following the Thanksgiving holiday, Utica fire Chief Russell Brooks will take the city to court.
Brooks has sought to be recognized by the city for compensatory benefits due to a medical condition he says is a product of his response to ground zero in New York City following the 9/11 terrorist attacks.
The city has rejected his applications for benefits through General Municipal Law 207-a, which outlines workers compensation benefits for firefighters, and General Municipal Law 92-d, which grants sick leave for responders diagnosed with a qualified World Trade Center-related condition. The regulations, amending the existing 92-d statute, recently were signed into law by Gov. Andrew Cuomo in September.
With the Article 78, Brooks is challenging that he is entitled to 92-d benefits, claiming his medical condition -- chronic lymphocytic leukemia, or CLL -- was caused by his response to the 9/11 site. He said his illness has been certified as a World Trade Center-related condition by the federal World Trade Center Health Program.
“This condition I have is one of the most prevelent conditions from being at ground zero on Sept. 11 and Sept. 12, (2001),” he said.
The city disagrees, citing medical opinions that there is no evidence of causation between Brooks’ illness and his time in New York City during the 9/11 response.
“From all of the competent medical evidence, the answer to that is clearly no,” said Assistant Corporation Counsel Armond Festine.
Brooks, meanwhile, maintains the city’s refusal is “strictly political” and stems from his strained relationship with Utica Mayor Robert Palmieri.
“If they get away with this ... they’ll continue to do it to other police and firefighters,” he said.
Palmieri’s office declined to comment.
All parties will appear before Judge Patrick MacRae on Monday, Nov. 27, in state Supreme Court in Rome. The case previously had been set for Friday, but an adjournment was granted as requested by Brooks’ attorney Earl Redding.
Medical history
Brooks, 69, was placed on leave in May, with city officials citing Brooks’ medical record, which was undisclosed until recently with the filing of the public court documents. Deputy fire Chief John Kelly was appointed temporary chief in July.
A report by one of the city’s medical experts, Dr. Warren Silverman, shows Brooks has had a number of medical conditions, including CLL, Type 2 diabetes, coronary artery disease, diminished vision and recurring respiratory issues.
“When we got this report, we said, ‘Look, this guy can’t be at fire scenes,’” said Corporation Counsel Bill Borrill.
Brooks was placed on leave on the same day his 207-a application was rejected, five months after it was filed.
The parties had been scheduled to appear before an arbitrator this week regarding the 207-a issues, but attorneys said the hearing has been postponed indefinitely due to the upcoming Article 78 proceedings.
When he responded in the 9/11 aftermath, Brooks did so in the employment of the Utica Fire Department as an assistant chief and was joined by several city firefighters, according to court filings. He was promoted to fire chief in 2004 and was diagnosed with CLL in 2007.
In 2011, the World Trade Center Health Program was created by the passage of the James Zadroga 9/11 Health & Compensation Act. Brooks enrolled in the program that December and has been recognized by the program with a certified World Trade Center-related health condition, according to his court filings.
Brooks’ court petition said the city “lacks the discretion” to deny, fail or refuse to provide sick leave through 92-d.
Burden of proof
From the city’s perspective, the World Trade Center Health Program certification is not sufficient medical evidence for Brooks to stake his claims for 92-d benefits or 207-a.
The city’s legal argument cites two reports from Silverman and a toxicology opinion by Dr. Michael G. Holland from SUNY Upstate Medical University in Syracuse. Borrill said the city has consulted with Silverman for similar cases involving duty-related injuries to public safety officers.
Holland’s Aug. 21 report, meanwhile, said the cause of CLL is unknown, while claiming that comprehensive reviews and major medical textbooks consistently conclude there is no causal relationship with any chemicals or agents with CLL development. He said Brooks exhibits several risk factors, including his age, genetics and familial history with leukemia.
“The allegations that Mr. Brooks’ CLL was caused by his brief exposures at the WTC is completely without any scientific support,” Holland wrote.
Brooks has at least four letters from doctors who say he is fit for duty, but the city argues that none of the four letters explicitly say his CLL was caused by his 9/11 response. Borrill said Brooks has the burden of proof to show causation.
Redding disagrees, citing Retirement and Social Security Law.
“Respondents must prove, by competent evidence, that his qualifying conditions were not subsequently developed from his participation at the World Trade Center site,” he wrote in his court papers.
Brooks said he disputes the medical history and findings outlined in both reports. He said the World Trade Center Health Program requires regular health screenings and checkups as part of its certification.
“The bottom line is the city contracted a doctor from outside the city that did what I view as a bogus health report on me,” he said. “It was contradicted by numerous local doctors and specialists -- credible people.”
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