TorteDeForm

Cyrus Dugger

A Burden of Proof – For Heroes?

As chronicled by the Daily News, the federal government recently released draft guidelines for use in determining if a person died from a Ground Zero related illness.

What these guidelines highlight is the high burden placed upon our heroes, as well as regular Americans caught in the toxic plume or living in contaminated housing, when asked to prove that their injuries were caused by exposure at the Ground Zero site.

Wait a second, shouldn't we just be able to assume that (at the very least) our courageous first responders, and our patriotic cleanup workers, who fall sick with the types of injuries identified in the recent comprehensive Mt. Sinai report got sick at Ground Zero? We all saw what Ground Zero looked like. We have all heard what was released at the site.

And many of us have heard how our government misled us into thinking the site was safe for human habitation when it wasn't. (see multiple posts on this issue Why the Challenges Faced by 9/11 Workers Affect Us All, 9/11 & The Safety Is Too Expensive Business Model, , Congress Rejects Aid For Sick 9/11 Responders: Puts Financial Safety Over Human Safety, 9/11 Financial Safety Over Human Safety Narrative Continues, Federal and NYC Governments Make It as Hard As Possible for 9/11 Victims

Isn't this an open and shut case?

Unfortunately, it's not.

Despite all the attention surrounding the recent NY Legislature's passage and Governor Pataki’s signature of legislation giving Ground Zero workers and responders more time to file workers’ compensation claims, one major thing that this legislation did not change was the difficulties workers face proving their injuries resulted from their Ground Zero work

(Although workers’ compensation is a “no-fault” system like car insurance that does not require a finding of negligence on the part of either party and simply compensates victims by way of mandatory insurance coverage when an injury occurs, over time it has nevertheless has been shaped into an adversarial proof focused proceeding)

Shouldn't somebody who worked at Ground Zero who gets sick with a documented Ground Zero disease be entitled to an assumption that it was the result of their patriotic Ground Zero work?

Moreover, why should a Ground Zero worker have to register on a special list? Maybe that is convenient for the government officials, but can that be helpful as an absolute requirement for compensation?

As to this second issue, several NY Assemblymen agreed that registration should not be required as it is not required of many workers who work in high risk occupations and who are likely to contract an “occupational illness.”

The law they proposed would have allowed all Ground Zero workers and responders to use the pre-existing framework of classification of “occupational illness” so that they had two years from the time they knew or should have know of their Ground Zero related illness without having to register (under the new law that actually passed those who don’t register are barred after two years from the date of their work at Ground Zero regardless of when they get sick).

However, their bill adopting this approach was passed over.

Instead, the NY State legislature passed and Governor Pataki signed Article 8-A of the Workers' Compensation Law

Now, potential workers’ compensation claimants who register with the state can guard their claim until they show signs of illness at any point in the future.

Problem solved right?

While a good first step, this bill does not do enough.

1) It is unlikely that many or at least all of people who are not yet sick will register. People are busy supporting themselves and their family and will have little reason to register if they are currently in good health. This registry closes less than a year from now on August 14, 2007.

2) Extending the filing deadlines doesn't make it any easier to prove exposure to Ground Zero caused your illness.

To prove that your illness was related to your Ground Zero work, you have to get a doctor to testify that they can say to “a reasonable degree of medical certainty” that the exposure caused the specific illness.

However, this is a lot to ask a doctor to testify to:

1) Previously without city medical guidelines for determining Ground Zero illnesses (ultimately released 5 years after 9/11) near 30-40% of exposed victims were initially misdiagnosed.

2) Many specialists did not have enough knowledge of other areas and other symptoms to put all the pieces and symptoms together such that they could link the conditions of victims to Ground Zero.

3) How do you get your busy doctor to come testify at your workers’ compensation hearing?

What is perhaps the worst and least well know problem with this bill is that even those who are already sick and have already filed claims have to file with the special registry in order to have new claims for additional types of illnesses which occur in the future.

For example, let’s say that you have a current workers’ compensation claim for sinusitis, you still have to have registered within the next year for a subsequent claim for cancer five years from now. The effect, whether intentional or accidental, is to lull those with current open claims into a false sense of security such that they do not register.

This aspect of the bill is all the more alarming in light of the fact that Mt. Sinai hasn’t even started heavily researching the incidence of cancer in 9/11 first responders and Ground Zero workers (the recently released Mt. Sinai study looked only at respiratory problems).

Again, this registry closes less than a year from now on August 14, 2007.

Amazingly, the recently released draft guidelines">proposed federal guidelines for determination of a death as Ground Zero related also set an unreasonably high bar of proof.

These guidelines repeatedly emphasizes that the causal link between Ground Zero exposure and the reported illnesses is not yet strongly proven.

As a result, the more years between 9/11 and the onset of illness, the more conclusive the medical research will be that WTC exposure unquestionably caused a specific illness.

I guess with time, and as more people die, more research will be developed which will make this link more clear for more symptoms and illnesses, and as to more people who fall ill. As this happens, perhaps the standard for proving a Ground Zero related death will be much less difficult to meet.

So at least over time, government officials and insurance companies will then stop objecting to many of the claims for workers’ compensation.

Right?

Unfortunately, no.

Just as time will increase medical evidence and the support for the abstract causal link between exposure and specified illnesses, so to does it weaken the causal empirical chain for individual claimants.

With each year that passes individuals are exposed to additional alternative toxins and dangers, and as such, with each year the argument can be increasingly advanced that other exposures or natural occurrences caused or greatly contributed to the same illnesses.

I predict, and we will have to check back in ten years to see if I'm right, but I do predict that over time government officials and workers’ compensation insurers will switch from arguing that there is no abstract causal link (because by that time there will be even more medical evidence) to contesting individual claims on the ground that even if there is a causal, that individual’s claim is invalid because they specifically got sick from exposures to something else in the time between their Ground Zero work and the onset of their illness 10-20 years thereafter.

As the contributions to Tort Deform hope to articulate, the playing field is no longer fair for those injured by the negligence of others who attempt to access justice through this nation’s courts and administrative agencies.

Sadly, the same is even true for our nation’s greatest heroes.

If you or your organization is interested in learning more about or working on these types of civil justice issues, please feel free to contact me at cdugger@drummajorinstitute.org.

Cyrus Dugger
Senior Fellow in Civil Justice
Drum Major Institute for Public Policy

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Posted at 11:24 AM, Oct 03, 2006 in EPA | Workers' Compensation
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