The disease within: disasters like Sept. 11 create hundreds of disease claims, but workers' comp systems are structured to reject these claims. Rescue, recovery and cleanup workers stand little chance of seeing a dime in compensation

Risk & Insurance, Oct 1, 2007 by Peter Rousmaniere

Summary

* When a workers' comp system fails, workers can be severely disadvantaged as they race to find money elsewhere to pay for medical care and disability.

* Virtually all the major claims of rescue and recovery workers have been or will be disease related, but state law has intentionally made it Very difficult for would-be claimants to receive awards for disease-related claims.

* New York City and insurance carriers intend to fight many claims filed by rescue and recovery workers, even though the workers' comp system was set up to give redress without court involvement.

Second in a Four-Part Series

In the second installment in the Risk & Insurance[R] in-depth series on the World Trade Center cleanup, authors Peter Rousmaniere and Steve Yahn explore how the state workers' compensation system could be inherently stacked against the dozens of Sept. 11 rescue, recovery and cleanup workers who need its protection. For more information on this series, please turn to page 32. To view this series online, along with exclusive Web-only resources, please visit us at www.riskandinsurance.com.

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On the day after the attack on the World Trade Center, public officials and union executives hastened to prepare for a legal and financial tsunami to hit the New York state workers' compensation system.

Their first thought was about direct victims of the attack, the building occupants and rescue workers killed or injured in the collapse. Their assumption, never seriously challenged afterward, was that these victims, every last one, were entitled to workers' comp.

Art Wilcox, a senior official of the New York state chapter of the AFL-CIO, recalls the initial horror. Even with the final figures, the "death load was equal to 10 years of normal deaths."

On Sept. 12, 2001, with the nation still in shock, a shaken Wilcox and other executives met with Robert Snashall, the former chief of the New York Workers' Compensation Board.

"We talked about how we were going to handle the claims process," says Wilcox. "In New York, like a lot of states, without a body or death certificate, it was hard to file a workers' comp claim. We worried about staffing the board."

Wilcox foresaw potential problems in assuring proper coverage for claims arising from rescue, recovery and cleanup of the site. "Around the 13th," he recalled in a telephone interview, "we had meetings with Senator (Hillary Rodham) Clinton among others, to figure out how much federal dollars we needed. We also talked with Mt. Sinai (Medical Center) to start doing medical monitoring with federal money."

Also, he says, "We talked about uninsured workers, as well as covering volunteers working down there. How does one determine compensability for them?"

This all happened the first week after the attack. But much of what was initially conceived of in those early discussions failed to materialize. About the only part of the plan that was implemented successfully was paying claims for victims of the collapsing towers.

When a workers' comp system fails to function, workers suffer; and the race is on to find money elsewhere to pay for medical care and disability. This is precisely what has come to pass.

THE "DEAD ELEPHANT"

Lawyers, unions and lawmakers today are seeking funding solutions in the billions of dollars through a lattice of federal grants, liability awards and disability pensions to make up for the gaping holes left by the workers' comp system.

The collapse of the workers' comp system is the dead elephant in the room no one wants to mention.

Causes of "death":

* Agonizingly slow administration of claims.

* Barriers for disease claims--the very claims that disasters will create.

* The proclivity for people to seek financial relief for work-related conditions through tort litigation and federal assistance.

To understand the tortuous flaws in the state workers' comp system, follow the case of Carl Smith. Smith was working and living some 30 miles east of Lower Manhattan in Long Island at the time of the attack. A few days later, he was instructed to report to ground zero, where he worked as a truck driver for most of the time through December 2001.

Smith would occasionally notice body parts caught in debris as operating engineers dumped the remains of the towers into his truck.

Visual shock, plus the smell of corpses, can provoke a psychological reaction in someone not trained to deal with those sights and smells.

In early 2003, the Mt. Sinai Medical Center monitoring program examined Smith and found he was displaying symptoms of heavy mental stress. He wasn't alone. The Mt. Sinai program later reported that half of the Sept. 11 rescue, recovery and cleanup workers it examined had post-traumatic stress disorder symptoms.

By 2005, two years after the initial diagnosis, PTSD began to manifest itself more clearly. "I was coming home in the afternoon, and there was a truck in front of me, and I began to see body parts hanging out of the truck," recalls Smith, now a resident of Upstate New York near Cooperstown, home of the Baseball Hall of Fame.