10th Anniversary of 9/11 Terrorist Attacks From a Workers’ Compensation Perspective: Difficult Times Behind Us; Difficult Times Lay Ahead

10th Anniversary of 9/11 Terrorist Attacks From a Workers’ Compensation Perspective: Difficult Times Behind Us; Difficult Times Lay Ahead

 By Thomas A. Robinson

Last week, while an angry gal named Irene was making her way up the Atlantic coast toward Gotham, I happened to get out of North Carolina ahead of the storm to spend a few days (August 25-26) in lower Manhattan. During one excursion there, I passed Ground Zero and noticed a flurry of activity as many worked feverishly to protect the almost-finished National September 11 Memorial from the potential damage that could be caused by Irene’s wind, rain, and storm surge.

It struck me how different are the attacks of hurricanes and terrorists. The former signal their path and intensity with observable patterns, the latter rely upon and require stealth since they produce the most damage among those whose guard is down.

Post-Irene reports from New York City indicate the storm produced much less damage than feared. Thank Goodness, the 400 swamp white oak trees that had been so carefully planted in the Memorial plaza were totally spared. The chaos caused by the Atlantic storm, as expensive as it is likely to be, is, of course, nothing compared to the losses experienced during, and following, the 9/11 tragedy. Ten years have passed since that fateful day, but the waves caused by the terrorist attacks continue to spread through our society. Our travel routines, the security in our buildings, even the availability of trash cans in urban areas, have all been affected. The not-so-gentle ripples of the attack were also keenly felt within the workers’ compensation world. It is fitting to look back at the past ten years, as we reflect upon that day when four airliners were commandeered for such nefarious purposes [for a general discussion of the September 16, 1920 Wall Street Explosion (or bombing), the 1995 Oklahoma City Bombing, and the September 11, 2001 Terrorist Attacks, as they relate to workers’ compensation, see Larson’s Workers’ Compensation Law, Ch. 7, § 7.02].

Thousands of Workers’ Compensation Claims in NY

Timed as they were during the mid-morning hours of a normal work day, the two planes that struck the World Trade Center towers, the plane that plowed into the Pentagon, and the fourth, which crashed into a field near Shanksville, Pennsylvania, caught America as and where she works. The events resulted in the filing, therefore, of thousands of workers’ compensation claims. As of the eighth anniversary of the attacks (the last period for which full records are readily available), the New York State Workers’ Compensation Board had 13,676 cases in its systems [see http://www.wcb.state.ny.us/content/main/TheBoard/WCBWTCReport2009.pdf]. Some 11,627 had meaningful detail on case outcomes that could be analyzed. The Board noted some important observations:

  • Groups such as federal employees and N.Y. City uniformed police, firefighters and sanitation workers were not included in the report since they are covered outside the state workers’ compensation system.
  • More than half the claims were for deaths and injuries suffered as a direct result of the attacks (2,058 death cases for victims, 3 death cases for rescue, recovery and clean-up workers, and 3 other consequential death cases).
  • 40% of the total claims were for rescue, recovery and clean-up workers and approximately 18% of those cases were for medical care only.
  • 55% of all injury (non-death) claims were for respiratory system diseases and 25% were for psychological disorders.
  • 4,414 WTC claims received wage replacement benefits (97% were for accident claims, 3% for occupational disease claims).
  • Average benefits paid:
    • Death benefits - $177,769
    • Permanent and Total Disability (43 persons) - $268,474
    • Permanent Partial Disability (546 persons) - $222,565
    • Scheduled Loss (Permanent Partial Disability)(226 persons) $27,719
  • Death Benefits were paid to 52 domestic partners of WTC victims. In this regard, the New York legislature amended WCL § 4 to provide death benefits to the domestic partner of those killed in the WTC attacks. The WCL does not accord such benefits to domestic partners in non-WTC cases.
  • More than 40% of all WTC claims were controverted by the insurer or employer. The Board notes that this is more than twice the typical rate of controversy. Nearly 16% of all WTC claims in which cash benefits were awarded were subject to administrative review (appeal) of the judge’s decision.

Federal Legislation in the Wake of the 9/11 Attacks

September 11th Victim Compensation Fund of 2001

In the first week after the disaster, Congress passed the 2001 Emergency Supplemental Appropriations Act for Recovery from and Response to Terrorist Attacks on the United States [P.L. 107-38]. Some $20 billion was allocated for disaster recovery in New York, Virginia and Pennsylvania. Twelve days after the attack, the September 11th Victim Compensation Fund of 2001 [P.L. 107-42] was enacted. Originally a $6 billion program, its intent was to compensate any individual (or the personal representative of a deceased individual) who was physically injured or killed as a result of the attack. Attorney General Ashcroft appointed Kenneth Feinberg, a specialist in mediation and alternative dispute resolution, as a Special Master to oversee the Fund and its distributions.

Administration of the Fund was not without its critics; mental claims, for example, were excluded. During 33 months, Feinberg personally presided at more than 900 of the 1,600 hearings on claims. According to the Special Master’s Final Report, some $7 billion was paid out to survivors of 2,880 persons killed in the attacks. The average award exceeded $2 million [see http://www.justice.gov for a PDF version of the report].

Zadroga Act (2011)

On January 2, 2011, President Obama signed the Zadroga Act [see http://www.justice.gov/civil/common/vcffaq.html#newvcf], which reopened the September 11th Victim Compensation Fund of 2001. The Zadroga Act purportedly expands the scope of the original VCF to enable more individuals who suffered injury or death as a result of the September 11th attacks to obtain compensation from the program. Like the initial VCF, the Act provides that an individual who elects compensation from the VCF waives his or her rights to pursue litigation to seek damages for the physical injury or death resulting from the September 11th attacks.

Special Master Sheila Birnbaum, a New York attorney known as “the Queen of Torts,” was appointed by Attorney General, Eric Holder, to administer the Fund. The VCF will accept claims for five years and will complete the payment of claims during 2016-17. Claims must generally be submitted within two years of the date the claimant knows of the physical injury or death resulting from the attacks. For persons who already have such knowledge, the filing deadline is October 3, 2013.

Congress appropriated a fixed sum of $2.775 billion for the (second) VCF. The Zadroga Act also created the World Trade Center (WTC) Health Program, to be operated by the National Institute for Occupational Safety and Health. The WTC Health Program provides medical treatment and monitoring for WTC-related health conditions.  Initially, those presumptively covered conditions include the following: 

  • Aerodigestive Disorders
  • Interstitial lung disease
  • Chronic Respiratory Disorder – fumes / vapors
  • Asthma
  • Reactive Airways Dysfunction Syndrome (RADS)
  • WTC-exacerbated Chronic Obstructive Pulmonary Disease (COPD)
  • Chronic cough syndrome
  • Upper airway hyperreactivity
  • Chronic rhinosinusitis
  • Chronic nasopharyngitis
  • Chronic laryngitis
  • Gastro-Esophageal Reflux Disorder (GERD)
  • Sleep apnea exacerbated by or related to the above conditions. 
  • Musculoskeletal Disorders
  • Low back pain
  • Carpal tunnel syndrome (CTS)
  • Certain other musculoskeletal disorders for WTC responders who received treatment for a WTC-related musculoskeletal disorder that meets certain criteria.

Generally, the Zadroga Act and the final rules state that to be eligible, a claimant must have been present at a “9/11 crash site” on September 11th or during its immediate aftermath. In a final ruling on the 9/11 VCF on Aug. 29, the Special Master announced a number of changes to the regulations for the final rule, including the expansion of the geographic zone recognized as the crash site to include the area south of Canal Street in New York City. She said the initial zone of coverage will include the WTC, Pentagon and Shanksville, PA, sites; the buildings that were destroyed; the area south of Canal Street in lower Manhattan; and the routes of debris removal.

The Years Ahead–Difficult Questions Remain

Last week, as I passed the construction site of One World Trade Center, I noted that the glass panels have been added to roughly two-thirds of the 80 floors for which steel has been set. The 9/11 Memorial will be completed by the 10th anniversary of the attack; the building, of course, will not be. While Sinatra crooned that New York, New York is the “city that doesn’t sleep,” those extra waking hours, it seems, aren’t spent on construction; they’re often spent in negotiation, deliberation, and dispute resolution. Progress is painfully slow thanks to the labyrinth of red tape, regulations, interest groups, and the like, that must be successfully placated or maneuvered. When completed, the “tallest building in lower Manhattan” [see http://www.panynj.gov/wtcprogress/index.html] will stand in the shoes, so to speak, of what once were the tallest towers in the world.

When I commented to a New York friend that all this didn’t seem like progress to me, he quickly retorted that “it took a lot of argument and compromise” to get the new tower to even the incomplete point that we see today. “There are just so many conflicting interests,” he reminded me. “Ours is a fractured and fractious society.”

Fractured and fractious, indeed. And the many fractions produce some unusual, and even undesirable, results. The interests of some seem better represented than those of others.

For example, many first responders can’t understand why, like the first VCF in 2001, the rules related to the administration of the “new” VCF presumptively cover carpal tunnel syndrome, but not cancer. They point to anecdotal evidence of increased levels of cancer among their cohorts [others argue that the medical evidence simply doesn’t show a true causal connection between cancer and recovery or clean up work at the Ground Zero site. See, e.g., The Lancet (September 3, 2011 issue) http://www.thelancet.com/home]. As noted above, others fail to understand why domestic partners deserve death benefits if the deceased partner was a WTC victim, but if he or she was not, there is no such recovery.

The entire 9/11 compensation process also seems to have identified one type of “victim” as worthy of national concern and compensation, all the while ignoring the all-too-similar losses experienced by others. Take the case of two hypothetical, unmarried employees, with no dependents, working in different New York cities on September 11, 2001. One labors for a small window-washing firm in the state capital of Albany. The other is a bond trader for Cantor Fitzgerald–his office in the WTC. Both hypothetical employees are killed on 9/11. Their surviving parents, or their estates, if there were no surviving parents, would have received a workers’ compensation death benefit of $50,000 [see N.Y. Work. Comp. Law § 16(4-b)] and statutory funeral expenses.

That would have been the extent of recovery in the case of the window-washer. The parents (or estate) of the bond trader would also have received a federal benefit of $2 million from the VCF.

What is it about the death of the one that elicits such a national outpouring? Would not the window washer be equally missed? Since the $2 million figure paid to the bond trader is based, at least in great part, on his or her anticipated lifetime earnings, does this say something about our society which seems to “value” the lives of the financial wizard over those who wash windows in nearby towns or those who might vacuum the very carpet upon which the “wizard’s” chair rested (the family of a 9/11 victim who worked as a janitor/custodian would have received less in terms of a VCF death benefit since his or her projected earning ability would be less than the nearby executive)? Would the trader have been as productive if he or she had to clean the office as well as make the trades?

Because tragedies like the terrorist attacks of September 11, 2001, cut our society to its very core, so much is revealed by our open wounds. It would be too much to expect the workers’ compensation system to reflect anything other than society’s underlying values. Those values generally put quantitative price tags on goods and services and, therefore, human lives. A system that long ago set in place a dispassionate value for an arm, or a leg, or an eye, will not easily utilize Solomonic wisdom in the face of the costs incurred due to terrorism. As we pause on September 11, 2011 to recall the moments of tragedy and sorrow of ten years ago, that failure should, however, be part of our collective lament.

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