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Wednesday, February 16, 2011

The James Zadroga 9/11 Health & Compensation Act of 2010

It Is A Guest Blog Featuring Troy G. Rosaco.......

On January 2, 2011, President Obama signed the James Zadroga 9/11 Health and Compensation Act (“Zadroga Act”) providing a total of $4.3 billion in health benefits and financial compensation for victims, responders, and other harmed by the attacks of September 11th and its aftermath.

The Zadroga Act accomplishes two goals important for individuals who suffered injuries or illnesses related to either the actual attacks or the subsequent cleanup.. First, Title I of the Zadroga 9/11Act establishes a comprehensive health plan to monitor and treat injuries suffered by first responders and survivors—including firefighters, police officers, EMT’s, rescue workers, construction workers, cleanup workers, local residents, local area workers, and school children—as the result of the exposure to toxic dust and debris around Ground Zero and other specified areas. Second, Title II of the Zadroga 9/11 Act reopens and expands a number of elements of the September 11th Victim Compensation Fund of 2001.

Title I - Health Benefits 


There are a number of health programs funded under the Zadroga Act. The new law establishes a new WTC responders medical monitoring and treatment program to provide medical evaluation, monitoring, and treatment benefits (including prescription drug benefits) to emergency responders and clean-up workers who were impacted by the WTC attack on September 11th. The benefits are delivered through medical “Centers of Excellence”.

The Zadroga Act also establishes a medical monitoring and treatment program to pay for medical monitoring for WTC responders who performed rescue, recovery, demolition, debris clean-up, and related services. If the responder meets the eligibility criteria and is accepted into the program, the responder is entitled to receive treatment if two conditions are met: (1) the condition is among those identified WTC-related listed conditions including a number of “aerodigestive” disorders, listed mental health conditions, and musculoskeletal disorders occurring during the rescue or recovery efforts, and (2) a physician at a Clinical Center of Excellence determines that a condition was caused or contributed to by exposure to airborne toxins, other hazards, or adverse conditions resulting from the September 11th attacks.

The Zadroga Act also establishes a “survivor program” for non-responders who lived, worked, went to school or were otherwise in a defined area of lower Manhattan (and parts of Brooklyn) for a certain time period after the September 11th attacks. The criteria and medical eligibility determinations for survivors are the same as those that apply to the responders program. The survivor program is the “secondary payor” to any applicable public or private health insurance for the conditions that are not work-related.

Title II - The Re-Opened Victim Compensation Fund of 2001

The Zadroga Act also reopens and significantly expands a number of aspects of the September 11th Victims Compensation Fund of 2001. The Zadroga Act amends the original September 11th Compensation Fund by extending the time in which a claim may be filed for a period of five years from the date that Special Master (who has not yet been appointed) updates the regulations under the Zadroga 9/11 Act. The Victims’ Compensation Fund was originally closed on December 22, 2003.

The Zadroga Act also expands the 9/11 Victim Compensation Fund (VCF) in several important respects. The original VCF provided a right to file a claim only to those individuals injured while “present at the site” of the disasters or in the “immediate aftermath” of the September 11th attacks. “Present at the site” was originally defined by the VCF as physically present at the time of the crashes in the buildings, portions of the buildings that were destroyed as a result of the airplane crashes or any contiguous area that was sufficiently close to the crash site that there was a demonstrable risk of physical harm from the impact of aircraft or any subsequent fire, explosions, or collapse of buildings. As a result, rescue and clean-up workers injured at the buildings or areas not adjacent to the site were not originally eligible to file a claim as they were not “present at the site”.

The original VCF regulations defined the “immediate aftermath” of the crashes for claimants, other than rescue workers, as from the time of the crashes for a period of 12 hours after the crashes. For rescue workers the period of time defined as the “immediate aftermath” was extended to include the period from the crashes until 96 hours after the crashes. Again, rescue and recovery workers who arrived more than 96 hours after the crash and were injured were excluded from filing a claim under the original VCF.

The Zadroga Act expands the definition of “immediate aftermath” to well beyond the 12 and 96 hour post-crash periods defined in the original law. “Immediate aftermath” is redefined by the Zadroga Act to mean “any period beginning with the terrorist-related aircraft crashes of September 11, 2001, and ending on May 30, 2002.” The expansion of what was considered the “immediate aftermath” of the terrorist attacks significantly broadens the pool of claimants in the VCF to include the rescue, construction, an other clean-up workers who suffered injures during the ongoing rescue and clean-up efforts that persisted for many months after the September 11th attacks.

The Zadroga Act also expands definition of the “crash site.” The term “9/11 crash site” is defined by the Zadroga Act to mean: ‘‘(A) the World Trade Center site, Pentagon site, and Shanksville, Pennsylvania site; (B) the buildings or portions of buildings that were destroyed as a result of the terrorist-related aircraft crashes of September 11, 2001; (C) any “area contiguous to a site of such crashes that the Special Master determines was sufficiently close to the site that there was a demonstrable risk of physical harm “ resulting from the impact of the aircraft or any subsequent fire, explosions, or building collapses (including the immediate area in which the impact occurred, fire occurred, portions of buildings fell, or debris fell upon and injured individuals); and (D) any area related to, or along, “routes of debris removal”, such as barges and the Fresh Kills landfill. on Staten Island.

One major issue that is unclear at the time of this writing is whether the residents, workers, and others in lower Manhattan who were sickened by the toxic fallout from the 9/11 attacks are eligible claimants under the VCF. The broadened language of the Zadroga Act amendments would suggest that the area residents and nearby workers are eligible claimants under the reopened VCF.

Within two weeks of the signing of the of Zadroga Act, however, Senator Kirsten Gillibrand’s staff announced that lower Manhattan residents and workers were not covered by the Fund, only to be contradicted by Rep. Jerrold Nadler (a co-author of the Zadroga Act) the next day, declaring that such area residents/workers were in fact covered. Resolution of this issue will need to be decided by the Special Master and the new rules implemented under the Zadroga Act. As of February 11, 2011, no Special Master has been appointed,

The Zadroga Act places sharp limitations on attorneys’ fees. The Zadroga Act amended the original Victim Compensation Fund law to place a “cap on attorneys’ fees of no more than ten percent” of an award made on a claim. The ten percent attorneys’ fee cap is further limited by fees previously received by attorneys representing VCF claimants who were also part of any settled civil action, including the recently settled litigation in the Southern District of NewYork. The Zadroga Act also prohibits an attorney from charging a legal fee in the case of an individual who was charged a legal fee in connection with the settlement of a prior civil action, except if the legal fee charged in connection with the settlement of a civil action is less than 10 percent of the aggregate amount awarded by a subsequent Victim Compensation Fund.

Bottom Line - attorneys who represented the over 10,000 9/11 responders in the recently settled actions against New York City cannot “double dip”. If their fees in the NYC litigation were higher than the 10% attorney fee cap in the Zadroga Act, they cannot charge any fee for the Zadroga VCF claim. New attorneys who represent the claimant solely in the Zadroga VCF claim are also limited by the 10% aggregate cap, which may dissuade some attorneys from taking claims where claimants previously paid attorneys a 25% fee under the NYC settlements. In some cases, the result might be that the attorney fee on the Zadroga Victim Compensation Fund claim could be significantly less that 10%, and could be offset completely.

Conclusion

The passage and enactment of the James Zadroga 9/11 Health and Compensation Act of 2010 was a huge victory for 9/11 first responders and survivors. Most importantly, it provides much needed medical monitoring and treatment to thousands of individuals who are now sick as a result of the 9/11 attacks and its aftermath. We are all aware now of the “toxic soup” that enveloped the area surrounding Ground Zero.

The Zadroga 9/11 Act also provides a second chance for many individuals, who were either ineligible or became sick after the closure of the original Victim Compensation Fund, to apply for a monetary award for their damages. As of February 11, 2011, President Obama has not selected the new Special Master of the Fund.

The original Special Master of the VCF was Kenneth Feinberg, who is now administering claims related to the BP Gulf oil spill. Mr. Feinberg has offered to act as Special Master in the reopened VCF on a pro bono basis. The Special Master must issue new regulations on Fund procedures within 180 days of enactment of the Zadroga 9/11 Act. Once these regulations are issued, attorneys will be in a much better position to counsel our clients on their rights and potential benefits under the new Zadroga Act.
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Troy G. Rosasco is a Senior Partner at Turley, Redmond, Rosasco & Rosasco, LLP with offices in Nassau, Suffolk and Queens. He has been representing 9/11 victims and first responders since soon after the September 11th attacks. He authors the nationally recognized New York Disability Law Blog.

Daniel J. Hansen is a personal injury trial attorney with his own practice and offices in the Woolworth Building in Manhattan. They are jointly handling 9/11 Victim Compensation Fund claims.


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