By: Noah Kushlefsky, Partner, Kreindler & Kreindler LLP

The Zadroga Act’s reopened September 11 Victim Compensation Fund provides a measure of financial relief and security to those selfless individuals who participated in the rescue, recovery and clean up efforts at the 9/11 crash sites, and to those who continued to work and live in the area near the attacks and now suffer from various debilitating illnesses. While some have expressed concerns that the VCF has not moved quickly enough to distribute funds or that the process is complicated and difficult for claimants, those concerns fail to account for the monumental challenge that faced Special Master Sheila Birnbaum and Deputy Special Masters Deborah Greenspan and Nell McCarthy when setting up the VCF, and the extraordinary effort which today has resulted in a fair, efficient and fraud-free system.

As of the date of this article, the VCF has made more than 4,000 awards, and is averaging hundreds of new award determinations each month.

In the immediate aftermath of the terror attack, the WTC area was flooded with first responders and volunteers from all over the country. Almost all able-bodied men and women who went to Ground Zero were asked to assist in the rescue effort. Later, during the recovery and cleanup thousands of men and women participated, many in the employ of private contractors. Many of them found themselves sick or injured, but they were not able to participate in the original Victim Compensation Fund because their conditions were not identified in time. Ten years later, after much effort, the Zadroga Act was passed and a new Special Master was asked to create a compensation program for the men and women who were left out of the first fund, and to do it in a few months.

As an attorney representing claimants in the Zadroga VCF (VCF2) from the beginning, and having represented hundreds of families in the original VCF (VCF1), I have had a front row seat to the workings of both VCF1 and VCF2, and can emphatically state that VCF2 has evolved into an excellent and well-administered program for the rescue, recovery and area resident victims of the September 11, 2001 terror attack.

Passing the Zadroga Act was critical to the thousands of first responders and others who developed terrible illnesses caused by their heroic rescue and recovery efforts at Ground Zero. These illnesses led to staggering medical expenses and often caused them to become physically disabled from their jobs. Many sick responders and their families were faced with foreclosure, bankruptcy and other devastating financial hardships.

The reopening of the VCF was and will continue to be a lifesaver for these men and women and for the families of those that die from their 9/11 injuries. The first VCF began as an alternative to litigation. VCF2 is the only realistic choice and only realistic chance of help for eligible claimants. Litigation can drag on for years and is tremendously uncertain. The VCF eliminates some of the onerous causation requirements needed to win in litigation. Also, the fund available for paying litigation claims is dwindling. Making the new VCF work, however, has been far more complicated than anyone could have imagined. Though complicated, making the VCF successful is necessary.

The first VCF was more straightforward in many respects because of the proof that was readily available to the Fund. Under the original statute, compensation was available to families of victims killed in the actual attacks and those survivors with direct physical injuries. For the families of those killed in the attacks, it was easy to ascertain the critical elements needed to qualify for compensation: (1) that the person was present at the site of the attack; (2) that the person was killed in the attack; and (3) that the family suffered a loss in the attack. VCF1 had available to it lists of victims provided by employers and the airlines, and it had death certificates. Companies in the Towers who lost employees provided VCF1 with comprehensive compensation packets to provide the information needed to calculate loss. For injury claims in the first VCF, to qualify a person had to have sought medical care within 72 hours of the attack. Since most of the injuries for which people sought medical treatment were traumatic injuries, it was clear what injuries were compensable and when a claimant’s injuries were from the attack. When the first VCF was expanded to include respiratory injuries suffered by first responders, it was also pretty straightforward. First responders who were caught in the toxic plume were diagnosed with breathing problems they hadn’t had before their exposure.

By contrast, when setting up the process for VCF2, the Special Master was faced with many complexities, not the least of which was the basic question of establishing eligibility for compensation. The two most difficult propositions for eligibility are: what injuries and illnesses would qualify for compensation; and what proof would be required to demonstrate that someone was actually present in the area of the World Trade Center and related sites, the Pentagon and Shanskville and exposed to toxins that led to those injuries.

The process for establishing these critical facts has evolved and been clarified since the VCF re-opened. A look at how the clarifications unfolded shows how the Special Master’s office has been reactive and has made consistent efforts to respond to the nature of claims and the available documentation. The Special Master’s office continues to be open to change in order to get the process to where it is today.

Proving Eligible Injury or Illness

The Zadroga Act created the World Trade Center Health Program and reopened the September 11 Victim Compensation Fund. The section of the statute that created the WTC Health Program specifically listed the categories of illnesses and injuries that would be covered for health care. The part of the statute that reopened VCF was silent on the injuries that would be compensable. The Special Master wisely decided that injuries that were certifiable for treatment by the WTC Health Program would also be certified for compensation in VCF2. This eliminated the need for the VCF to evaluate a causal link between exposure and illness and relied on the National Institute for Occupational Safety and Health (NIOSH), which administered the Health Program, to decide what illnesses would be compensable, saving considerable resources that could then be spent on claims

In order to be certified by the Health Program, some injuries had to be diagnosed within a particular time frame and other injuries had to be diagnosed after a minimum latency period. For example, upper and lower respiratory diseases must be diagnosed within five years of exposure or it will be presumed that the toxic exposure was not a cause of the illness. Conversely, most cancers must be diagnosed at least four years after initial exposure or it is presumed that the exposure was not a contributing cause of the cancer. By adopting the Health Program’s injury certification criteria, the VCF partnered with the Health Program and adopted illness certifications from the Health Program. Once a physical illness or injury is certified for treatment in the Health Program, it is eligible for compensation.

What about responders who are not in the WTC Health Program and whose illnesses therefore have not been “certified” for treatment? Indeed, thousands of people otherwise eligible for compensation are not part of the WTC Health Program. The reasons vary. For many outside of the New York area, when they first became sick there was no national WTC Health Program like there is now, so they were forced to go to private doctors rather than seeking treatment through the New York based health program. Others have excellent health insurance and chose to go to doctors of their choice. For others, when they were first diagnosed their specific illness was not eligible for treatment in the Health Program, and they have elected to stay with the medical providers who have treated them from the beginning.

For these people, VCF2 had to create a process to verify injuries for compensation. How this process has evolved provides good insight into how the VCF has responded to claimant needs in order to avoid unnecessary delay.

In the original private physician process, a claimant identified his or her treating doctor in the eligibility application and signed an authorization allowing the VCF to communicate with the doctor directly. The VCF then sent the doctor a form to fill out describing the symptoms, dates of onset and diagnosis. The goal was to minimize the burden on the claimant under the assumption that the doctors would cooperate. Unfortunately, doctors often did not complete these forms. The response was abysmal and it became clear that private doctors were not going to be helpful when contacted directly by the VCF.

In response, the VCF created a form to be filled out principally by the claimant or his/her attorney, with a section to be filled out and signed by the doctor. Claimants were encouraged to make an appointment with their doctor, who, it was expected, would fill out the rest of the form and sign it. Although well-intentioned to move the process along, the response to this effort was also very poor. It took time for claimants to get appointments and doctors were generally not happy when a patient made an appointment solely to get paperwork filled put. Often the doctors had the claimants leave the form with them, and the form was never seen again.

After that failed effort, a system was put in place which has been very successful. A detailed form was developed which is filled out and signed by the claimant. It requests WTC exposure dates and hours, dates of onset of symptoms and identifies the treating/diagnosing doctor by name, address, phone number and state medical board license number. The form is submitted to the VCF with the specific medical records requested by the VCF that contain diagnosis and dates. The VCF has a medical panel that reviews the submission for sufficiency before it is sent to NIOSH for ultimate certification.

While it took time and some trial and error to get to this procedure, the result has been excellent – thousands of people outside the Health Program have had injuries and illnesses certified for compensation in the past year.

Proof of Presence

The other essential component of eligibility is proof of presence at the WTC site. Needless to say, a claimant trying to prove he or she was someplace for a few days or weeks 10 years ago is challenging. Nevertheless, to avoid the possibility of fraud, certain rules had to be put in place.

At first, a claimant was asked to submit any proof available that demonstrated that he or she was at the site during the required time frame. While many types of evidence were acceptable, most claimants chose to submit detailed affidavits of two people who witnessed their presence. If two affidavits could not be obtained and there were no other documents, the claimant would have to go to a hearing and provide sworn testimony to a hearing examiner from the Department of Justice who would make a credibility determination.

This focus on affidavits had several problems. Many people showed up alone at the disaster site, and have no chance of getting two affidavits. Over the years people have retired, moved, and lost touch with those they were with at the disaster sites.

Even the option of an automatic hearing to establish presence upon request was problematic, because many claimants simply went to a hearing rather than doing due diligence to obtain affidavits, which was a burden on the VCF.

Over time and with experience, claimants have been given more detailed information about what needs to be submitted to prove presence and the process has evolved in a way that makes more sense. The VCF is now provided more evidence of presence and is able to look at the totality of information submitted by a claimant. It considers affidavits of co-workers, affidavits of family members, employment records, photographs of the claimant at the first disaster site with appropriate identification, official badges issued for entry to the site, certificates of participation from various organizations, employment records and employer letters, direct verification by employers or volunteer organizations, contemporaneous medical records and any other documents that tend to prove presence. If a claimant can provide enough evidence to show that he or she was at the disaster site, the “presence” requirement will be satisfied. Only if all other avenues of proof are exhausted will a claimant be entitled to a hearing, and then only after their claim has been formally denied by the VCF.

The two processes highlighted above are part of the eligibility phase of VCF2. There are plenty of examples of how VCF2 has worked through issues during the compensation phase of a claim as well. It has labored diligently to build direct pipelines of information with unions, responder organizations (NYPD, FDNY, Port Authority) and other employers who sent a lot of people to the disaster site (for example, Verizon and ConEd). In some cases, VCF2 has been successful in getting the information directly from employers or related organizations. In others, it has had to put the onus back on the claimants to provide the information. While these efforts may have led to some early delays while VCF2 established the relationships and procedures with the various employers and other entities, the result is now a faster and more focused process.

Today the VCF is functioning more quickly, efficiently and accurately. While in any large-scale enterprise there may be problems, most of the delays today in issuing awards are not internal to the VCF, but a product of the VCF having to wait for necessary information from outside organizations. As a practitioner, I applaud the efforts of Special Master Sheila Birnbaum and her staff, and her willingness to grow and make corrections to meet the needs of the nationwide 9/11 community.