In the Matter of Emil Albano,
Appellant,
v.
Board of Trustees of New York
City Fire Department, Article II
Pension Fund,
Respondent.
2002 NY Int. 114
The issue before this Court is whether the decision of the Board of Trustees that appellant's testicular cancer is not a cancer affecting the lymphatic, digestive, hematological, urinary or prostate systems (General Municipal Law § 207-kk) has a rational basis and is supported by substantial evidence. We hold that the decision is rational and is supported by substantial evidence, as did the Appellate Division.
Appellant Albano, a firefighter with the New York City
"It is the unanimous opinion of the 1-B Medical Board that [Albano] is disabled from full fire duty due to testicular cancer, but there is no evidence of involvement of the lymphatic or urinary systems. Therefore, it is our unanimous recommendation that [Albano's] application for accident disability retirement be denied."
Thereafter, the Board of Trustees held a hearing and
took testimony from Dr. Kerry Kelly, the Chief Medical Officer of
the Bureau of Health Services of the Fire Department. The
physician opined that "the testicles could be considered part of
the genitourinary tract because the testicles developed,
embryologically, from the same type of tissue as the urinary
Upon remand, the Medical Board reviewed the Board of Trustees' transcript and adhered to its recommendation that, under the statute, Albano was not entitled to an ADR pension. Thereafter, the Board of Trustees divided evenly on the question whether Albano's disability was entitled to a presumption that it was caused in the line of duty, thus denying him an ADR pension (see Matter of City of New York v Schoeck, 294 NY 559 [1945]) but granting him an ODR pension.
Supreme Court dismissed the petition. The court
reasoned that the support for the proposition that the testicles
were part of the urinary system or part of the prostate system
was far from overwhelming and left room for doubt. The court
further found that the Board of Trustees' decision was supported
by substantial evidence, and was not purely a matter of statutory
interpretation as it involved a determination of Albano's medical
condition. The Appellate Division affirmed, reasoning that the
interpretation of the General Municipal Law § 207-kk required an
evaluation of factual data and inferences to be drawn therefrom,
On this appeal, Albano argues that the Legislature used the terms "any condition affecting the urinary and prostate systems" in General Municipal Law 207-kk because it intended broad coverage of any organs in those systems. Albano emphasizes that these statutory terms derive from a study produced by Mount Sinai Medical School which used the terms "genitourinary system and cancers of the genitourinary system" in identifying a class of cancers related to firefighting. The report further stated that the genitourinary system included all organs concerned in reproduction and in the formation and voidance of urine. The Board of Trustees counters that it had a rational basis to conclude that General Municipal Law § 207-kk does not cover testicular cancer. We agree.
General Municipal Law § 207-kk, the Cancer Bill, provides:
"Notwithstanding any other provisions of this chapter to the contrary, any condition of impairment of health caused by (i) any condition of cancer affecting the lymphatic, digestive, hematological, urinary or prostate systems * * * [of a] member of a fire department in a city with a population of one million or more, who successfully passed a physical on entry into the service of such department, which examination
failed to reveal any evidence of such condition, shall be presumptive evidence that it was incurred in the performance and discharge of duty unless the contrary be proved by competent evidence."
The enactment of Municipal Law § 207-kk (L 1994, ch 567), resulted from the development of medical data demonstrating the high incidence of cancer in firefighters, as compared with the average adult population. Accordingly, the statute creates a rebuttable presumption that a firefighter who develops certain enumerated types of cancers, incurred them in the course of performing his or her duties, thereby eliminating the burden of proving causation.
Where the interpretation or application of a statute
"`involves knowledge and understanding of underlying operational
practices or entails an evaluation of factual data'" within the
expertise of the agency administering the statute, courts accord
great deference to the agency's judgment unless it is "irrational
or unreasonable" (Dworman v New York State Div. of Hous. &
Community Renewal, , 94 NY2d 359, 371 [1999][quoting Kurcsics v.
Merchants Mut. Ins. Co., , 49 NY2d 451, 459 (1980)]. Where,
however, the question is one of pure statutory interpretation
there is little basis to rely on any special competence or
expertise of the administrative agency. In such circumstances,
the court "need not accord any deference to the agency's
determination" and can undertake its function of statutory
In the present case, in order to decide whether Albano
was entitled to an ADR pension, the Medical Board and the
Trustees were called upon to interpret the statute, but such
interpretation involved their expertise in the evaluation of
factual data. The decision therefore, is to be afforded
deference. Because testicular cancer is not enumerated as a
cancer entitled to the statutory presumption -- the statute
offers presumptive coverage for cancers affecting the lymphatic,
digestive, hematological, urinary or prostate systems -- the
agency was required to use its medical expertise to decide
whether testicular cancer "affects the urinary or prostate
systems." The Medical Board rendered the medical evaluation that
testicular cancer is not a cancer affecting the urinary or
prostate systems and recommended denying Albano an ADR pension.
The Board of Trustees divided on the question and, under its
longstanding practice denied ADR benefits but awarded an ODR
pension (see Letter from State Assembly Member, dated July 15,
1994, at 6, Bill Jacket, L 1994, ch 567 ["The bill represents a
balanced approach by maintaining the requirement that
occupationally related cancer cases must be referred to the Board
of Trustees of the Fire Department Pension Fund. The Board will
retain discretion concerning the cause of the cancer, and thus[,]
if not convinced, may reverse an award for accidental
Because the question of whether testicular cancer affects the urinary' or prostate system is a question involving the expertise of the Medical Board and the Board of Trustees, and because we conclude that there is a rational basis for the decision, the order of the Appellate Division should be affirmed, with costs.