TorteDeForm

Cyrus Dugger

Why the Challenges Faced by 9/11 Workers Affect Us All

In recent weeks, New York's Daily News mounted a relentless campaign highlighting the plight of sick ground zero responders and workers. For the month of August, almost every morning there was a story, often with accompanying pictures, of sickened and suffering ground zero workers who rose to this nation's patriotic call for assistance in the immediate aftermath of the 9/11 terror attacks.

Consequently, this recent attention has resulted in the first substantial action by federal, state, or city executive government officials in support of these victims. In the past week, NYC officials announced funding for treatment of NYC residents (as opposed to the responders and ground workers who are already eligible through the WTC Health Effect Treatment Center) who have become sick from exposure to the WTC site.

Last month, Governor Pataki signed a bill pushed by the NY state legislature which allowed the extension of the deadlines for filing workers compensation claims for ground responders and workers, and also allowed increased eligibility for benefits for those who volunteered.

Lastly, in recent months, and after extensive lobbying by Senator Clinton, Congressman Nadler, and Congresswoman Maloney, the federal government has for the first time made its own funds available for medical treatment for WTC responders, ground zero workers, and volunteers (the previous treatment program for responders and workers was funded exclusively by private donations - especially the Red Cross). Likely, as a direct result of this media pressure, federal officials recently stated (without saying how much it will ultimately cost) that they will continue to supply new funding for treatment as is needed.

Of course this is all a happy ending to a unique problem, which we can now all forget about.

I wish it were so simple.

The question we should all keep in the forefront of our minds, is how is it possible that it has taken 5 years for there to be a comprehensive governmental response to the health problems of ground zero workers?

Well, not only have our New York federal representatives been forced to jump through hurdles and "make the case" that the WTC dust has been causing these injuries to federal, city, and state executive officials in order to secure funding for monitoring and treatment, every injured worker has been faced with a similarly difficult set of obstacles in filing their own specific workers compensation claims.

Today, on September 11th, we should all grieve for those we lost, but we should also take a moment to wonder how our civil justice system has made it so excruciatingly difficult to secure benefits for our injured 9/11 responder and worker heroes.

Initially, if you were a ground zero worker you only had two years from the time you worked at ground zero to file a claim for workers compensation. And yet, many of the illnesses related to ground zero work did not surface in a serious fashion until after this two year period of time had passed. As a result, many people were denied coverage simply because they took "too long" to get sick or to ask for financial help from others.

Even if you did have the "luck" to get sick enough that you realized you needed workers compensation such that you filed within the two year time limit, you were asked to meet a high burden of proof to make the case that your injuries were tied to your 9/11 work.

To make your workers compensation case you have to get a doctor testify for the record that they had found to a "reasonable degree of medical certainty" that your injuries were linked to your WTC work. Of course, no doctor had seen these types of injuries before because the effects of the inhalation of the exact chemical cocktail released by the destruction of a skyscraper by an airplane were unprecedented and unknown. Adding to the problem was the fact that New York City officials refused to release diagnosis and treatment guidelines (until right before the 5th anniversary of the attacks) despite the fact that Mt. Sinai Hospital had previously published its own in 2002. Consequently, according to the Mt. Sinai study's findings, 30-40% were initially misdiagnosed by their physician.

And after all of this difficulty, the most that a worker can qualify for cash benefits to replace their previous income is two thirds to three quarters of their previous salary, up to a maximum of $400 dollars a week, or $20,800 a year.

So this issue is unfortunate, but it is only relevant to this singular, extraordinary, and massively destructive circumstance.

I wish it were so.

While the circumstances surrounding 9/11 and the particulars of the environmental exposure that followed are simply unprecedented, the difficulties accessing justice and getting benefits and compensation faced by those who worked or lived near the WTC who have since become sick are unfortunately quite typical.

Just as 9/11 responders, workers, and Manhattan residents have banged their heads against a civil justice system, and often a workers compensation system, which make it incredibly difficult to gain benefits for their injuries, so would they have done so if they were injured as the result of someone’s negligence in another context unrelated to 9/11.

The same short filing time periods would apply.

The same difficulties meeting the same burdens of proof.

The same procedural hurdles and bureaucratic processes.

The same series of premature denials, long delays, multiple appeals, and minimal payouts capped at $400 a week.

What the problems and challenges of the 9/11 health victims should do is serve as a cautionary note to us all that our civil justice system is in need of serious reform. Others call for "tort reform" on the basis that our civil justice system overcompensates victims, makes it too easy to go to court, and harms American businesses through large judgments and payouts.

It seems clear that few experiences so effectively challenges the notion that access to justice and just compensation in America is already too easy to achieve, than the experience of those who have fallen ill from exposure to contaminants at or around Ground Zero.

If you're interested in helping 9/11 health victims get access to permanent access to the treatment and compensation that they deserve contact:

The Beyond Ground Zero Coalition
Senator Clinton’s Office
Congresswoman Maloney’s Office
Congressman Nadler’s Office
The New York Environmental Law & Justice Project

If you're interested in helping all Americans get better access to justice in the future, keep reading Tort Deform and follow our discussion about how we can improve our civil justice system or email me at cdugger@drummajornstitute.org to learn more about what you can do.

Cyrus Dugger: Author Bio | Other Posts
Posted at 7:00 PM, Sep 13, 2006 in
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Comments

For over 20 years, my father was a workers' compensation defense attorney, so I have more than a passing familiarity with the problems facing injured workers.

Your post illustrates many of the problems inherent to the workers' compensation system, including high burdens and low compensation. Without a doubt, the system is geared to benefit the employer more than they employee. So it's no wonder that many tort reformers want to refashion the tort system in the workers' compensation system's image.

If even the rescue workers of 9/11 get treated this shabbily, imagine how bad the average worker gets treated...

Posted by: Justinian Lane | September 11, 2006 2:57 PM

Just wanted to say I heard your piece on the Majority Report and was inspired!

Posted by: Mike Fox | September 13, 2006 8:29 PM

This is definitely something to watch, especially as 4 years from now I fully expect to be reading the same thing about Katrina rescue workers.

Posted by: Tanya Elena Balsky | September 14, 2006 1:41 AM