Zadroga 9/11 Act Victim Compensation Claims &

New York Workers’ Compensation Law

Appellate Division, Second DepartmentSupreme Court, State of New York

Continuing Legal Education SeminarApril 27, 2011

Troy G. Rosasco Esq1-631-582-3700 x123

tgrosasco@nydisabilitylaw.comwww.zadrogaclaimsinfo.com

History of the 9/11 Victim Compensation Fund

• Originally signed into law 9/23/2001 as part of the “Air Transportation Safety and System Stabilization Act” – protect airline industry first (not victims)

• Fund’s Purpose: to provide monetary compensation to any individual (or relatives of a deceased individual) who was physically injured or killed as a result of the 9/11 attacks

• “Special Master” determines compensation based upon both ‘economic’ and ‘non-economic’ harm

• Kenneth R. Feinberg was appointed Special Master on 11/26/2001

• Original Fund closed December 2003

History of New York Workers’ Compensation Law

• Originally enacted in 1910, but declared an unconstitutional taking of property without due process on March 24, 1911 by NY Court of Appeals. Ives v. Buffalo R. Co., 201 NY 271 (1911)

• The next day, on March 25, 1911, 146 workers ( many women and children) perished in the Triangle Shirtwaist Factory Fire in lower Manhattan – many jumping to their death on the pavement 8 stories below. (sound familiar?) This was the worst work related disaster in New York prior to 9/11.

• Spurred by public outrage, the Legislature amended the NY Constitution to allow for the enactment of the “Workmen’s Compensation Law” in 1914. (made gender neutral in 1978)

• New York just commemorated the 100th anniversary of the Triangle Fire on March 25, 2011.

The Historic “Bargain” between Employers and Employees

• Workers’ Compensation Law (WCL) is a bar to employees suing employers for work injuries.

• In return for giving up their right to sue, employers must provide medical coverage and wage replacement benefits, regardless of fault.

• WCL covers both “accidents” (carpenter hurts back lifting on a specific day) and “occupational diseases” ( secretary, or attorney, develops “carpal tunnel syndrome” over time re-drafting opinions for a picky Justice)! Never happens….right?!

Original Victim Compensation Fund (VCF)

• $5.99 billion to 2,880 families of deceased victims• $1.053 billion to 2,680 physically injured victims (no

PTSD)• 51% of injury claims were respiratory ailments• Average physical injury award $392,968.11• Did not cover ‘latent injuries’ due to chance that these

victims would be ‘under-compensated’• Collateral offsets (WC, SSD, DB pension) reduced

physical injury awards by 30% on average (i.e. $392,968 minus 30%)

• Average time from application to confirmed payment 264 days (almost nine months)

What Was Left After Initial Attacks at Ground Zero?

It’s Not Just ‘Dust’?

• Initial ‘dust cloud’ was bad enough;• But, smoldering fires on the ‘pile’ that

converted gases into highly toxic ‘aerosols’ until January 2002 were far worse

• Think about the difference between breathing in baby powder (most gets caught in nose and throat) and breathing in Lysol Aerosol Air Freshener (which goes deep into your lungs because the chemicals are suspended in gas)

Partial List of Toxins in Air at Ground Zero• PCB’s (Polychlorinated biphenyls)• Polycyclic aromatic hydrocarbons (PAHs) –

caused by jet fuel burning with debris• Benzene (associated with blood cancers)• Asbestos (fire-proofing)• Dioxins (Polychlorinated dibenzodioxins) • Mercury (fluorescent light bulbs) • Cadmium• Ground fiberglass, glass & pulverized cement

What was Need for the Zadroga 9/11 Act?

• Simply too many severely ill first responders, clean-up workers, construction workers and volunteers

• World Trade Center Health Registry currently has over 71,000 enrollees from all 50 states

• Some estimate that over 100,000 people could have been exposed to dangerous levels of toxins from the WTC site (clothes-wash-wife?, washers of trucks and equipment, downtown residents)

• Original VCF closed in 2003 to new claims• Many were not eligible to sue for their illnesses

James Zadroga 9/11 Health & Compensation Act of 2010

• James Zadroga was NYPD Detective who died of 9/11 Ground Zero related respiratory disease

• Act Signed by President Obama 1/02/2011• Updated regulations and appointment of new “Special Master”

by 7/01/2011 (still not done as of 4/19/2011)• Provides $4.3 billion, $2.8 to re-open the VCF and $1.5 to fund

WTC related treatment and monitoring• Expands eligibility to those who worked at site from 9/11/01 –

5/30/02 (not the original 12 – 36 hr rule)• Expands definition of “crash site” (including Fresh Kills landfill

and “debris removal route”)

Who is eligible under the Zadroga Act?• Police Officers (including non-NYPD)• Firefighters (including Volunteer Firefighters)• EMS Workers (including from private hospitals)• Sanitation & Dept. of Transportation Workers• Construction Workers (including truck drivers)• Utility Workers (Con Ed, Verizon, etc.)• Clean-Up Workers (including office & residential

buildings)• Volunteers (Red Cross, Salvation Army, etc.)• Other Public Workers ( Morgue workers, various

Federal workers – EPA, FBI etc.)• Downtown residents

What Medical Conditions Are Covered?

• Interstitial lung diseases (including Sarcoidosis)• Chronic respiratory disorders• Asthma• Reactive airways dysfunction syndrome (RADS) • WTC-exacerbated chronic obstructive pulmonary disease (COPD)• Chronic cough syndrome• Upper airway hyper reactivity• Chronic rhino-sinusitis• Chronic nasopharyngitis• Chronic laryngitis• Gastro-esophageal reflux disorder (GERD)• Sleep apnea• PTSD (but not for compensation under the VCF)• *Cancer (blood, thyroid, esophageal, nasopharyngeal, oral, gastric,

kidney) – * Awaiting final decision from NIOSH & Special Master

How to File a Zadroga VCF Claim?• Waiting now for Appointment of Victim

Compensation Fund “Special Master” by President Obama (US Attorney General). He or she will update VCF regulations and provide public comment period

• Waiting now for Updated Rules, Regulations, and Forms (Must be done 180 days from 1/2/2011, or July 1, 2011)

• We expect the Victim Compensation Fund to re-open by Fall 2011 (hopefully)

Who is a Fund “Special Master”?• Appointed by US Attorney General to

administer Victim Compensation Fund• Issues updated regulations on claims

procedures• Almost always a lawyer, judge or US Attorney• Final “decision maker” on how much

monetary compensation claimants receive• The most important person under the

Zadroga 9/11 Act Victim Compensation Fund

How to Prepare to File a VCF Claim

• Gather all medical records related to 9/11 conditions (get your clients to WTC Medical Monitoring and Treatment Program ASAP - 1-888-702-0630)

• Gather proof of participation in rescue, recovery, cleanup and volunteer service

• Gather proof of “economic damages”• Gather proof of “pain & suffering” damages• Plan strategy on how & when to file• Obtain legal representation (interview attorneys)

How Much Money Can Claimants Receive from the VCF?

• Depends on how the Special Master determines your “economic damages” ( lost wages, benefits, pension, medical insurance, etc) and your “non-economic damages” (pain, emotional suffering, loss of enjoyment of life, mental anguish)

• Award could be anywhere from a few thousand dollars to multi-millions depending on your injuries

Effect of Prior 9/11 Litigation• You can still file a Zadroga Act 9/11 VCF claim• Prior payments will be deducted from your

Zadroga Victim Compensation Fund Award• Attorney Fees from prior litigation will offset

Zadroga Act Attorney Fees (capped at 10%)• What if you received a prior award from the

original Victim Compensation Fund? Probably will be unable to apply again, even if change in condition or new diagnosis

How Long Will the 9/11 Victim Compensation Claims Process Take?

• Unknown at this time – depends largely on claims procedures to be determined by Special Master (nine months last time)

• When will the Special Master be appointed???• Best thing to do now is to start getting all

documentation of injuries and economic losses together so you can be ready to file when Fund opens

• Interview and retain legal counsel now, if desired

How to File a Workers’ Compensation Claim• First, report the “accident” or “injury” to your employer

in writing within 30 days. WCL § 18 (most do this by filling out an “Accident Report” with employer)

• Second, seek medical treatment immediately and tell health provider you were injured on the job (medical provider will fill out proper forms to send to Workers’ Compensation Board)

• Third, go to http://www.wcb.state.ny.us/ and complete the online version of form C-3 (Employee’s Report of Accident) within two years of accident or injury. WCL § 28 (but do it immediately to avoid problems – it’s easy)

• That’s it!

Benefits Available under the WCL• While out of work, injured worker entitled to up to 2/3 of her

“average weekly wage” (AWW) tax-free while “totally disabled”, up to the NYS maximum weekly benefit (currently $739.33, $772.96 effective 7/1/2011).

• All medical treatment, including prescriptions, with no out-of-pocket cost to the worker. Worker must treat with a provider “coded” by the WCB and treatment must comply with new Medical Treatment Guidelines effective 11/1/2010.

• Certain extremity injuries (including eyes, hearing loss, facial scars) can result in cash awards without any lost time.

• Section 32 Settlement Agreements are “buy-outs” of all future liability (take $ and go away).

Workers’ Comp & Third Party Negligence Settlements• New Case Hot off the Presses: Stenson v NYS Dep’t. of Transportation,

(App. Div., 3D, 3/31/2011) .

– Clarifies Burns v Varriale, 9 NY3D 207 (2007) and Kelly v State Ins. Fund, 60 NY2d 131 (1983). Also see Teff, After Burns v Varriale: Essential Lessons for Workers’ Compensation Third-Party Action Attorneys, 83 NY ST BJ 48 (Jan. 2011).

– Clarifies that when a claimant obtains a third-party recovery (say in a Labor Law § 240 or 241(6) case), the WC carrier “must contribute … the cost of litigation in proportion to the benefit it has received” as a result of the claimant’s (attorney’s) efforts in the third-party action. Must reading!

• § 29 of WCL confers two separate benefits to the WC carrier: 1) the right to a lien on the recovery for the amount of benefits paid to date and; 2) the right to offset a claimant’s future compensation benefits by the amount of the claimant’s net recovery in the third-party action.

• § 29 of WCL requires plaintiff’s attorney in third party action to obtain the written consent of the WC carrier to settle the third-party action, or risk loss of all future WC benefits.

• Common area for legal malpractice!

Is the Zadroga Act Modeled on the WCL?• Both born from New York, historic deadly tragedies in

the workplace• Both born of legislative compromise and remain

controversial today• Both require claimants to give up right to sue• Both are administrative claims which allow for due

process hearings in a “non-adversarial” setting• Both are geared to handle a large number of similar

claims• Both promise a faster route to justice than in trial

courts… we will see!

Questions?

• Call 1-631-582-3700 x123• Visit

www.zadrogaclaimsinfo.com• Thank You for Attending this

Seminar!