Zadroga Act Reopens the

Victims Compensation Fund of 2001

 

BROOKLYN BARRISTER - FEBRUARY 2012

The official publication of the Brooklyn Bar Association

 

By Robert Ungaro, Esq.

 

On January 2, 2011, H.R. 847, the James Zadroga 9/11 Health and Compensation Act of 2010 (P.L. 111-347) (Zadroga Act), was signed  into law by President Obama.  The Zadroga Act reopens the September 11th Victim Compensation Fund of 2001. Eligible claimants who have a traumatic physical injury or a presumptively covered health condition or disease (and representatives of individuals who have died as a result of such a traumatic injury or presumptively covered health condition or disease) that was caused as a result of September 11th and who are otherwise eligible may receive compensation from the VCF for economic and non-economic loss as defined in the regulations.

In our capacity as disability counsel to two NYC Law Enforcement unions, we have been receiving steadily increasing inquiries regarding the Zadroga Act from attorneys and potential beneficiaries. As a service to the Brooklyn Barrister reader, we are providing you with a preliminary digest of the some of act’s relevant provisions and some general information.

The Zadroga Act expanded the scope of the original Victim Compensation Fund.  This Act allows more individuals who suffered physical injury or death as a result of the September 11th attacks to obtain compensation from the program.  It provides $4.2 billion dollars to finance two important benefits:

 

  1. Continued Health care monitoring and treatment and;

  2. Compensation to individuals (or their estates if applicable) who were physically injured or killed as a result of 9/11.


On May 18, 2011, Sheila Birnbaum was appointed Special Master, by Eric Holder, the United States Attorney General. Ms. Birnbaum is a life-long New Yorker, a past President of the New York Women's Bar Association and has decades of experience resolving complicated litigation. She gained recognition for her work mediating a settlement of $500 million for 92 families of victims of the September 11th terrorist attack on the World Trade Center. As Special Master she is responsible for administering the fund, processing claims and promulgating regulations.  Ms. Birnbaum has completed two distinct claim forms – the Eligibility Form and the Compensation Form – which are now available.  The process of filing a claim has begun. Please remember, the Eligibility Form and Compensation Form may be completed and submitted separately, but the Eligibility form must be completed first.

The Act provides information on coverage:

Eligibility:
WHO: Workers, volunteers, and certain residents who suffered exposures during the terrorist attacks and subsequent rescue and recovery operations.


WHAT: The development of serious, physical ailments which may include:

 

  • 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 hyper reactivity

  • Chronic rhino sinusitis

  • 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 defined as “a chronic or recurrent disorder of the musculoskeletal system caused by heavy lifting or repetitive strain on the joints or musculoskeletal system occurring during” the period between September 11, 2001 and May 30, 2002 or as determined by the Special Master.


WHEN: 4 Hours in first 4 days; 1 Day in September of 2001; or 80 hours between 9/11/2001 & 7/31/2002.


WHERE: In lower Manhattan, (south of Canal Street), the Staten Island Landfill or the Barges and Piers used to transport debris.


HOW: Treatment: The Zadroga Act requires treatment by medical professionals for 9/11 related physical injuries within a reasonable time from the date of discovery and which is supported by contemporaneous medical evidence.

Time Periods Within Which Claims must Be Filed: The Zadroga Act divides those who can file into two groups to be determined by the Special Master.

Group 1: Individuals who knew or should have known that they suffered a physical harm as a result of 9/11 BEFORE the date the new regulations are promulgated - such individuals will have until October 3, 2013, to file a claim.


Group 2: Individuals who become aware of a physical harm as a result of 9/11 AFTER the date new rules are promulgated by the Special Master - such individuals will have two years form the date the Special Master determines that such individual knew or should have known that they suffered from such harm and were eligible to file a claim.

IN ALL CIRCUMSTANCES CLAIMS ARE TO BE FILED DURING THE FIVE YEARS from the date the new rules are promulgated (October 3, 2016).

Pending and Future Civil Claims:
This Fund was established as an alternative to litigation and requires that individuals who wish to file a claim, waive their right to file a future civil action for damages as a result of 9/11 in Federal or State court. The Zadroga Act also makes provisions for those who previously commenced civil actions during the years since the Victims Compensation Fund closed (December 2003) in two ways:


Pending Actions: Individuals with pending claims may not submit a claim under this act unless they withdraw from such action within 90 days from the date that regulations are established.


Settled Actions: Such individuals may not submit a claim unless such action was commenced AFTER 12/22/2003 and a release of all claims in the action was tendered prior to the date on which the Zadroga Act was enacted.

Benefits:
Claims can be filed for both Economic and Non-economic losses.


Economic Loss means any pecuniary loss resulting from harm (including the loss of earnings or other benefits related to employment, medical expense loss, replacement services loss, loss due to death, burial costs, and loss of business or employment opportunities) to the extent recovery for such loss is allowed under applicable State law. Non-economic Loss means losses for physical and emotional pain, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium (other than loss of domestic service) hedonic damages, injury to reputation, and all other non-pecuniary losses of any kind or nature.


The Special Master in determining award values, shall consider Collateral Source compensation, which may include life insurance, pension benefits, death benefits, and payments by Federal, State, or local governments related to 9/11, or prior civil claim awards.

If an individual is determined to be eligible, the VCF will issue a determination on compensation once a Compensation Form is fully submitted and deemed substantially complete. Claimants will have the right to appeal both determinations. Once an individual has accepted the award or completed the appeal process, the VCF will issue a payment within 20 days of that date.


These initial payments will not contain a Claimant’s full award. In order to ensure that there is enough money to make a payment to every Claimant who is entitled to receive a payment, the Zadroga Act provides that the first payment to each Claimant should contain a portion of the full award. As a result, the size of that first payment will depend on the amount of the Claimant’s full award, as well as the total number of Claimants and the amount of money available. The Zadroga Act provides that most of the available money will be distributed at the end of the program, so in most cases these initial payments will be significantly less than the full award. The Zadroga Act provides that $875 million will be available to pay claims in the VCF’s first five years.

The Act provides that the remainder of the award may be paid five years after the VCF opens. Claimants can thus expect to receive the rest of their payment in 2016-2017. Depending on the number and type of claims, and in order to ensure that all eligible Claimants receive an award, the Zadroga Act’s cap on funding means that it is possible that those payments will be pro-rated.

Representation
The Special Master is making efforts to make this process user friendly and legal representation is not required and potential claimants are free to decide whether to engage counsel.   However, great care should be directed at insuring that the application properly documents eligibility through participation, physical impairments and the proper support by treating specialists.  Improperly filed claims can result in the loss of benefits or the denial of a claim.  We do not recommend that our clients file directly.  Because awards can be appealed via an administrative hearing, where witnesses, including expert witnesses, testimonial and documentary evidence may be presented  it may be most prudent to have an experienced practitioner assist in the development of the record, ab initio.

Capped Legal Fees
Attorney fees are modest, paid only upon a successful result and will be capped at 10%.  Such fees must be paid directly by the Claimant.  The Zadroga Act prohibits the charging of any up front fees.  

This article seeks to provide you with an opportunity to assist your clients, as well as to turn legal inquiries into income generating cases. However, it does not apply to every situation and is not meant to substitute specific legal advice from an attorney familiar with this area of law or a careful review of the Act’s provisions and administrative rules.

Robert Ungaro is a founding partner of Ungaro & Cifuni, Attorneys at Law, LLP, a general disability practice which also serves as disability counsel to both the New York City Police Department Captains Endowment Association and the New York City Police Department Lieutenants Benevolent Association. He has successfully represented thousands of disabled clients seeking financial and medical benefits.  He can be contacted directly at (212) 766-5800. Their Website is http://nycdisabilitylaw.com.