Why Congress must reauthorize and extend the Victim Compensation Fund

The September 11 Victim Compensation Fund is a Financial Lifesaver For Responders and Rescue Workers Rendered Disabled by World Trade Center Related Illnesses

Failure to Fully Fund the Zadroga Act will lead to Devastating Results for the Men and Women that the Statute is supposed to Aid and Protect.

Much has been written in recent years about the serious physical illnesses that have befallen over 33,000 rescue and recovery workers, survivors and residents who breathed in the poisonous dust that blanketed lower Manhattan after the September 11 terror attack and the collapse of the World Trade Center Towers. More than 3,900 cases of cancer have been linked by NIOSH among the participants in the World Trade Center Health Program.  Nearly 200 FDNY and NYPD members have reportedly died of 9/11 related injuries and conditions, and these numbers are growing.

Less has been written about the effect that the terrible illnesses have had on the lives of these men and women. Thousands of people have become disabled from work and are unable to support their families on meager monthly disability payments, if any. Family homes have fallen into foreclosure. Cars have been repossessed.  Children have had to drop out of college.  The terror attacks left in their wake a trail of financial ruin affecting many brave men and women who responded to the attacks and others who had the misfortune of living or working on the tiny piece of the United States that happened to be the target of an attack on our country.

The James Zadroga Health and Compensation Act, named in honor of our client NYPD Detective James Zadroga, was passed into law in January, 2011 in order to provide financial assistance to those who can prove that they have suffered physical illnesses and economic losses as a result of the September 11th attacks. The Victim Compensation Fund (VCF), run by the United States Department of Justice, determines the evidence that claimants produce in order to determine whether someone is entitled to compensation.  If there is proof of exposure to the toxic dust, and proof of a 9/11 related disability (as determined by a pension board, the Social Security Administration or Workers Compensation Board), and proof of financial losses like lost earnings, the VCF will award an amount of money to try to put the claimants in the same financial position they would be in had they not become disabled by the terror attacks.

Generally speaking, the VCF looks at what the claimant was earning before disability, looks at other sources that provide disability payments, and issues an award letter that makes up the difference, if any, so that the claimant can continue to pay their family’s bills, rent, mortgage, tuition, other living expenses, etc.

When Congress passed the Zadroga Act and reopened the new VCF (the original VCF which was created in two weeks after the attacks in order to compensate those who died in the planes and in the buildings on 9/11  –it closed in December, 2003), it set aside $2.77 billion to compensate those who became sick and/or disabled.  Many thought that $2.77 billion would suffice.  However, since 2011, NIOSH has linked 62 cancers to the toxins.  It is now evident that the Fund is underfunded.  Claimants who are receiving award determinations face a bleak future.  They will be lucky to someday receive 50% of their awards.

Since the medical community feared that first responders would develop cancer at an alarmingly higher rate than pre-9/11 first responders, Congress made a provision for new illnesses to be added and compensated, as long as scientific data supported the inclusion of new illnesses.  That is the reason why VCF claimants are initially given only 10% of the amount awarded. In theory, the balance of their awards is supposed to be paid in 2017.  However, if the total amount of all the awards given out by the VCF’s Special Master exceed $2.77 billion, every claimant will have his/her award ratably reduced.  For many, the initial payments go toward paying bills and debts that are long delinquent, with hopefully something left over to make it through the next couple of years. If the VCF is not fully funded, in 2017 claimants will receive another partial payment that hopefully will cover some of their financial needs, but only for a few more years. Without full finding, many of the thousands of people the Zadroga Act is supposed to help will soon after find themselves back in the same dire financial situations that they were in before the Act was passed.

A few real life stories help to humanize this issue:

GR was a sales executive on Long Island. The moment the World Trade Center was attacked, he drove into New York City and volunteered in the rescue and recovery efforts.  He spent four days digging through the rubble searching for survivors. By 2003 he was diagnosed with multiple pulmonary and respiratory conditions and by 2005 they had become so severe that he was disabled from his job. He was awarded workers compensation at the highest level available, but that totaled only 20% of his pre-disability earnings. He was later diagnosed with one of the cancers that doctors have linked to the toxic dust. To support himself, his wife and his two young children, he went through his personal savings and cashed out his retirement plan. When his kids began reaching college age he applied for a second mortgage on his home to make ends meet, but the chance of getting the second mortgage was slim because he was months and months behind on the payments for his first mortgage and faced foreclosure. His financial life was saved when he was given a fair award by the VCF. The initial 10% payment went to paying the arrears on his mortgage, assisting his children with college costs and paying for his family’s basic daily needs. Another payment in 2017 will help him get through a few more years, but without full payment of his VCF award determination, he will not be made whole.  With his retirement savings gone, he and his wife will be forced to uproot their family and find a cheaper place to live.  They are counting on the full VCF award to keep a roof over their heads and food on their table for the rest of their lives.

SH was a resident of lower Manhattan.  When the EPA assured him that “the air is safe”, he and his children moved back to their apartment, just 2 blocks from Ground Zero.  In December of 2013, at age 42, SH was diagnosed with brain cancer which NIOSH has certified and attributed to World Trade Center toxic exposure. He underwent two brain surgeries and chemotherapy and has been left with severe neurological deficits. He can no longer read and write and has significant memory problems. He has been is unable to work since his diagnosis, let alone care for himself. Not only has he lost a salary of about $70,000 a year, but he also lost health insurance for himself, his wife and his daughter, and other benefits like his retirement plan. He requires full time care which is provided by his wife.  She was forced to give up her job.  He receives $1,822 a month ($21,864/year) in Social Security Disability benefits. The family is counting on a full VCF award in order to help pay their basic daily and monthly living expenses because Social Security Disability pays only about 30% of SH’s pre-disability earnings. Anything less than a full VCF award that replaces lost earnings, health insurance, and his retirement account,  will mean that the family will not survive financially, and will likely compromise the care that SH desperately needs.

AE lives in Missouri with his wife and young son. On September 11, 2001 he was a member of the New York Fire Patrol and responded to the attacks on the World Trade Center. He was at the site when the towers collapsed and was thrown down a flight of stairs and suffered a traumatic injury to his aorta which later required multiple surgeries and a pacemaker.  Despite the heart injury, he spent 51 days after the attacks working at the WTC site searching for victims. He also suffers from serious upper respiratory and pulmonary injuries. As a result of his 9/11 injuries, he has been found permanently and totally disabled from work at age 41.  A few years after his injury the New York Fire Patrol disbanded and AE was not only without an income, but without benefits he expected based on his disability. Before his injury he earned about $55,000 per year.  His family has been barely surviving on Social Security Disability benefits which pay about $21,200 per year. According to the United States Government, the poverty threshold for a family of 3 is $20,600. AE’s heroism on 9/11 has resulted in his family living close to poverty. A VCF award replacing his lost earnings will help return his family back to their modest comfortable life. Less than full payment of that award will cast them back close to poverty in a few years.

OD lives outside of Atlanta, Georgia. In 2001 she worked in a retail store across the street from the World Trade Center.  She was caught in the plume when the towers collapsed. She returned to work at the store just two weeks after the disaster to clean the dust and debris from the inside of the store. She did so without proper respiratory protection.  In 2010 she was diagnosed with metastatic thyroid cancer which has required multiple surgeries. NIOSH linked the cancer to the toxic WTC exposure.  She has been found disabled by the Social Security Administration. At the time of her diagnosis she had three children, ages 6, 8 and 14. A partial payment of her VCF award will provide her family with a few years of living expenses. However, without full lost income compensation she and her children will find themselves back in financial despair with an uncertain future.

CS lives in Alabama with her two children. Her husband worked as a union laborer for hundreds of hours at the World Trade Center Disaster site. He earned about $50,000 per year. In 2003 he developed severe respiratory conditions which were found disabling by his doctors as well as the Social Security Administration. He also received a union disability pension. In 2010 he was diagnosed with World Trade Center related lung cancer. He died as a result of the lung cancer in 2013. Her husband’s death has led to dire financial circumstances for CS and the children. His disability pension ended at his death. Desperate for money to buy groceries and pay bills, CS applied for an expedited hardship award from the VCF and was given a modest payment of $25,000, enough to help her get by for a few months. She is still waiting for a decision on her compensation claim. Only full payment of an award for her family will assure them financial solvency.

These are only a handful of the hundreds of stories of people whose lives have been diminished physically and financially by the 9/11 terror attacks.

Our nation owes the men and women who performed heroically in response to the attacks, and those who survived the attacks, more than just our gratitude and concern. We have a moral duty to meet the financial promises that Congress, through the Zadroga Act, has made to our fellow Americans. To do anything less would be shameful.  Our country has a proud tradition of not leaving our soldiers on foreign soil behind when they have made the ultimate sacrifice on the battlefield.  We take care of their families when they have been found disabled and/or die.  We should treat the soldiers injured and killed on our own land no differently.  We should not leave our first responder “soldiers” behind —those who participated in the rescue and recovery efforts at the World Trade Center.

The only thing that these brave men and women did wrong was to believe the EPA’s pronouncements that the “air is safe”.