Workers' Compensation: Long Overdue Public Safety Worker Coverage

Legislation has been reintroduced to provide workers’ compensation benefits for certain public safety workers who developed an occupational illness or injury flowing from the September 11, 2001, terrorist attacks. A closer look at the legislation reveals that it removes defenses such as causal relationship, statute of limitations, and jurisdiction. Complicated statutory and regulatory challenges may ultimately offset the benefits offered.

PRESUMPTION AND JURISDICTION

This bill creates a presumption that any injury, illness, or death from any World Trade Center-related health conditions that are certified by the Centers for Disease Control is compensable under workers’ compensation law for public safety workers who participated in the response to the September 11, 2001 attacks and who are being treated or monitored through the World Trade Center Health Program established by the Centers for Disease Control.

COLLATERAL BENEFITS

While certain workers may already be covered under other eligibility criteria for workers’ compensation benefits, there remain workers who acted heroically on September 11th, who have become ill or injured but remain ineligible for workers’ compensation benefits.

ELIMINATION OF THE STATUTE OF LIMITATIONS

This bill eliminates the statute of limitations defenses for workers who still need to file for their medical conditions. Eligible individuals include those participating in the World Trade Center Health Program. The Centers for Disease Control established this program, and one of the operation centers is Rutgers University. The program provides treatment and monitoring for those who responded to the September 11th attacks. The proposed legislation will benefit those heroes who have endured severe health consequences due to that participation.

CASE LAW LIMITING JURISDICTION

The NJ Supreme Court, in a 5-2 split, held that the workers' compensation claimant's exposure to toxic substances during four months of his employment in New Jersey, immediately followed by an additional twenty-one-year exposure to the same or similar substances in New York, did not result in injury, namely occupational pulmonary disease, in New Jersey to confer subject matter jurisdiction on the New Jersey Division of Workers' Compensation. The decision was authored by Justice Coleman, a former judge of compensation. Williams v. PORT AUTHORITY OF NY, 813 A. 2d 531 - NJ: Supreme Court 2003.

The proposed legislation would reverse the Williams case decision and adopt the analysis expressed in a strong dissent written by Justice Long, who argued that the case should considered within the jurisdiction of the NJ Division Workers’ Compensation:

“In sum, the Port Authority, a bi-state agency with a major presence in New Jersey, purposefully assigned Williams to work here and, in so doing, exposed him to noxious substances. It was here that, as a matter of law, some of Williams's injury is deemed to have occurred. Plainly, the composite employment incidents reveal that New Jersey's interest is more than fleeting and casual.”

“More importantly, the majority opinion effectively singles out one class of workers, those who by happenstance have been exposed to noxious substances both within and outside our borders, for a different jurisdictional burden than all other workers. There is simply no warrant for such a move. All workers' compensation cases should be subject to the same jurisdictional threshold and to the analysis by which we have classically abided. As a judicial system, we have absolutely no interest that will be vindicated by closing our doors to workers like Williams.”

OFFSET OF BENEFITS

Should the legislation be passed, another issue is offsetting benefits awarded under collateral programs, including pensions, Federal programs established for 9/11 first responders, and Medicare (Medicare Secondary Payer Act). If medical benefits are awarded are not subject to offset, the legislation will undoubtedly advantage the Rutgers University medical program, which would be a positive consequence and, collaterally, avail the citizens of the State of New Jersey.

Bill S1470 was favorably reported out of the NJ Senate Labor Committee by a vote of 3-0 with 2 abstentions. Senators Joseph A. Lagana and Nicholas P. Scutari were the primary sponsors. It has been referred to the NJ Senate Budget and Appropriations Committee. An identical bill, A2100, was introduced in the NJ Assembly.

POSITIVE STEP FORWARD

The legislation is a long overdue and positive step forward in recognizing public safety workers who developed illness or injury as a result of responding to the September 11, 2001, terrorist attacks that occurred almost a quarter century ago. The legislation should be amended to include all terrorist attacks regardless of the territory upon which they occurred. NJ heroic responders who cross interstate lines in response to such tragic events should be recognized and provided for by the NJ Workers’ Compensation Act. This is even more important as the world faces political upheavals and chaotic events worldwide.

World Trade Center Tragedy Creates Complex Workers' Compensation Issues 10/8/2001 Available at SSRN: https://ssrn.com/abstract=3581298 or http://dx.doi.org/10.2139/ssrn.3581298

Rutgers World Trade Center Health Program Clinical Center of Excellence

Recommended Citation: Gelman, Jon L., Long Overdue Public Safety Worker Coverage Worker Coverage, www.gelmans.com (02/01/2024)

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Tuesday, January 30, 2024

Long Overdue Public Safety Worker Coverage

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