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New York Legislature Passes New 9/11 Workers Comp Bill to Protect Ground Zero Claimants

Tuesday, June 27, 2006

Congratulations to the New York State Assembly and New York State Senate for passing an amendment to the NY Workers’ Compensation Law (new Article 8-A) which will grant new rights and benefits to ill 9/11 rescue, recovery, clean-up workers and volunteers who worked at Ground Zero after the World Trade Center tragedy. Thanks to the hard work and diligent efforts of many individuals and organizations, including the NY Workers’ Compensation Alliance,  who pushed for passage of this important bill, these heroes will now have their health and economic security protected.

The new "9/11 Bill" allows workers who later become ill with conditions such as asthma, chronic obstructive lung disease (COPD), asbestosis, mesothelioma or cancer to file their claims as "occupational diseases". This change essentially extends their time to file a claim to two years from the "date of disablement", rather than two years from the date of exposure exposure which resulted in the denial of many claims to date. Claimants who have had 9/11 disease cases disallowed for late claim filing (statute of limitations) problems can now re-open those denials. Anyone with a 9/11 claim previously denied due to lateness should contact a workers compensation attorney immediately. Turley, Redmond & Rosasco has been handling 9/11 workers’ comp and disability claims since the WTC tragedy.  Our attorneys have written numerous articles and lectured at local law schools regarding 9/11 workers’ compensation claimsAny rescue, recovery, or clean up worker whose claim was previously denied or believes their current illness is related to work at Ground Zero is invited to call us for a FREE CONSULTATION.  That’s the least we can do for our 9/11 heroes.  The entire text of the new 9/11 workers’ comp bill is below:

————————————————————————————–

AN ACT to amend the workers’ compensation law, in relation to claims for
illnesses sustained by workers who participated in the rescue, recov-
ery and clean-up effort following the terrorist attack at the World
Trade Center on September 11, 2001

The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:

1 Section 1. The workers’ compensation law is amended by adding a new
2 article 8-a to read as follows:
3 ARTICLE 8-A
4 WORLD TRADE CENTER RESCUE, RECOVERY AND CLEAN-UP OPERATIONS
5 Section 161. Definitions.
6 162. Registration of participation in World Trade Center rescue,
7 recovery and clean-up operations.
8 163. Notice; participants in the World Trade Center rescue,
9 recovery and clean-up operations.
10 164. Disablement of a participant in World Trade Center rescue,
11 recovery and clean-up operations treated as an accident.
12 165. Reopening of disallowed claims.
13 166. Liability of employer and insurance carrier.
14 167. Claims of volunteers.
15 § 161. Definitions. Whenever used in this article:
16 1. "Participant in World Trade Center rescue, recovery, or cleanup
17 operations" means any (a) employee who within the course of employment,
18 or (b) volunteer upon presentation to the board of evidence satisfactory
19 to the board that he or she:
20 (i) participated in the rescue, recovery, or cleanup operations at the
21 World Trade Center site between September eleventh, two thousand one and
22 September twelfth, two thousand two; or
23 (ii) worked at the Fresh Kills Land Fill in New York city between
24 September eleventh, two thousand one and September twelfth, two thousand
25 two, or

EXPLANATION–Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD17509-01-6
S. 8348 2

1 (iii) worked at the New York city morgue or the temporary morgue on
2 pier locations on the west side of Manhattan between September eleventh,
3 two thousand one and September twelfth, two thousand two, or
4 (iv) worked on the barges between the west side of Manhattan and the
5 Fresh Kills Land Fill in New York city between September eleventh, two
6 thousand one and September twelfth, two thousand two.
7 2. "World Trade Center site" means anywhere below a line starting from
8 the Hudson River and Canal Street; east on Canal Street to Pike Street;
9 south on Pike Street to the East River; and extending to the lower tip
10 of Manhattan.
11 3. "Qualifying condition" means any latent disease or condition
12 resulting from a hazardous exposure during participation in World Trade
13 Center rescue, recovery or clean-up operations.
14 4. "Disablement" shall have the same meaning as defined in section
15 thirty-seven of this chapter and determined by the board in the same
16 manner as provided in section forty-two of this chapter.
17 § 162. Registration of participation in World Trade Center rescue,
18 recovery and clean-up operations. In order for the claim of a partic-
19 ipant in World Trade Center rescue, recovery and clean-up operations to
20 come within the application of this article, such participant must file
21 a written and sworn statement with the board on a form promulgated by
22 the chair indicating the dates and locations of such participation and
23 the name of such participant’s employer during the period of partic-
24 ipation. Such statement must be filed not later than one year after the
25 effective date of this article. The board shall transmit a copy of such
26 statement to the employer or carrier named therein. The filing of such a
27 statement shall not be considered the filing of a claim for benefits
28 under this chapter.
29 § 163. Notice; participants in the World Trade Center rescue, recovery
30 and clean-up operations. The notice requirements for injury or death
31 resulting from a qualifying condition for a participant in World Trade
32 Center rescue, recovery and clean-up operations shall be the same as set
33 forth in section eighteen of this chapter, except that the notice shall
34 be given to the employer, or in the case of a volunteer, to the board,
35 within two years after the disablement of the participant or after the
36 participant knew or should have known that the qualifying condition was
37 causally related to his or her participation in World Trade Center
38 rescue, recovery and clean-up operations, whichever is the later date.
39 § 164. Disablement of a participant in World Trade Center rescue,
40 recovery and clean-up operations treated as an accident. The date of
41 disablement of a participant in World Trade Center rescue, recovery and
42 clean-up operations resulting from a qualifying condition that is
43 causally related to such participant shall be treated as the happening
44 of an accident within the meaning of this chapter and the procedure and
45 practice provided in this chapter shall apply to all proceedings under
46 this article, except where otherwise specifically provided herein.
47 § 165. Reopening of disallowed claims. The board, upon receiving a
48 statement duly filed as required under section one hundred sixty-two of
49 this article, from a participant in World Trade Center res
cue, recovery
50 and clean-up operations for a qualifying condition that was disallowed
51 as barred by section eighteen or section twenty-eight of this chapter
52 shall reopen and redetermine such claim in accordance with the
53 provisions of this article, provided that no such previously disallowed
54 claim for a qualifying condition shall be determined to have a date of
55 disablement that would bar the claim under section eighteen or section
56 twenty-eight of this chapter.
S. 8348 3

1 § 166. Liability of employer and insurance carrier. The employer in
2 whose employment an employee participated in World Trade Center rescue,
3 recovery and clean-up operations shall be liable for any claim for a
4 qualifying condition that is causally related to such participation
5 provided that such participation arose out of and in the course of such
6 employment. For the purpose of determining which carrier has insurance
7 coverage of such claim, the date of accident shall be considered the
8 last day of such participation.
9 § 167. Claims of volunteers. For persons who participated in World
10 Trade Center rescue, recovery and clean-up operations as volunteers, the
11 uninsured employers’ fund shall be deemed to be the employer only for
12 the purposes of administering and paying claims pursuant to this arti-
13 cle. Benefits under this chapter shall be payable to such volunteers
14 only to the extent that funds are available out of funds appropriated to
15 the United States Department of Labor under Public Law 109-148 to reim-
16 burse the uninsured employer’s fund for the payment of such benefits.
17 § 2. This act shall take effect immediately and shall be deemed to
18 have been in full force and effect on and after September 11, 2001 and
19 shall apply to all open and closed claims coming within its purview.

——————————————————————————–

NEW YORK STATE SENATE
INTRODUCER’S MEMORANDUM IN SUPPORT
submitted in accordance with Senate Rule VI. Sec 1

BILL NUMBER: S8348

SPONSOR: MARCHI

TITLE OF BILL:
An act to amend the workers’ compensation law, in relation to claims for
illnesses sustained by workers who participated in the rescue, recovery
and clean-up effort following the terrorist attack at the World Trade
Center on September 11, 2001

PURPOSE OF THE BILL:
The purpose of this bill is overcome obstacles of filing claims by
participants in World Trade Center rescue, recovery and clean-up oper-
ations following the September 11, 2001 attacks for latent conditions
and illnesses by treating such claims filings in a similar manner to
claims for occupational disease. The bill also addresses specific issues
regarding claims of those who participated as employees and those that
participated as volunteers.

SUMMARY OF PROVISIONS:

Section 1 of the bill adds a new article 8-a to the Workers’ Compen-
sation Law ("WCL") which provides as follows:

* Section 161 provides definitions of "Participant in World Trade Center
rescue, recovery and cleanup operations", "World Trade Center site",
"Qualifying condition" and "Disablement" as those terms are used in the
new article. "Qualifying condition" is defined as a latent disease or
condition resulting from a hazardous exposure during participation in
the rescue, recovery or clean-up operation. "Disablement" is defined to
have the same meaning as the term is used in the WCL in reference to an
occupational disease.

* Section 162 requires participants, in order to qualify for special
notice and claims filing provisions for a qualifying condition, to file
a written and sworn statement with the Workers’ Compensation Board (WCB)
within eighteen months of the effective date of the legislation stating
the dates that person worked in the operation and name of the employer.
The employer and carrier are to receive a copy.
* Section 163 provides that notice of injury or death from a qualifying
condition shall be given within two years after the disablement of the
participant or after the participant knew or should have known that the
qualifying condition was causally related to participation in rescue,
recovery or clean-up operations, whichever is later.
* Section 164 provides that the date of disablement for a claim by a
participant for a qualifying condition shall be treated as the occur-
rence of an accident so as to provide a statute of limitations standard
to these claims the same as that which applies to an occupational
disease claim.
* Section 165 provides that upon receiving a duly filed registration
statement for a qualifying condition, the WCB shall reopen any previous
claim for such a condition disallowed under WCL § 18 or § 28 and rede-
termine the claim applying the liberal notice and claims filing
provisions as provided.
* Section 166 provides that the employer of any participant in rescue,
recovery and clean-up operations shall be liable for any claim for a
qualifying condition that arose out of and in the course of employment
and that the insurance carrier covering the employer on the last day of
participation in rescue, recovery and clean-up operations has coverage
of such claims.
* Section 167 provides that the Uninsured Employers’ Fund shall adminis-
ter and pay the claims of those who participated as volunteers but that
benefits shall be paid only to the extent that funds appropriated by the
federal government for such purpose are available.
Section 2 of the bill provides for an immediate effective date but is
deemed to have been in effect on and after September 11, 2001 and
applies to all open and closed claims coming within its purview.

EXISTING LAW:
Existing law treats claims for latent conditions resulting form a
hazardous exposure during participation in the rescue, recovery or
clean-up operation as accidents.

PRIOR LEGISLATIVE HISTORY:
None.

STATEMENT IN SUPPORT:
The aim of this bill is to remove statutory obstacles to timely claims
filing and notice for latent conditions resulting from hazardous expo-
sure for those who worked in rescue, recovery or cleanup operations
following the World Trade Center September 11th, 2001 attack.
The WCL requires an employee to provide notice to the employer within 30
days (WCL § 18) and to file a claim for benefits within two years of the
injury (WCL § 28). Under the WCL, latent conditions are normally
compensable as occupational diseases. Notice and claims filing require-
ments are triggered by a date of disablement determined by the WCB.
Occupational disease claims usually involve conditions that develop
slowly over a period of years after an employee has performed a partic-
ular type of work. Each disease established by the WCL as occupational
is linked to particular work processes that the employee has performed
over time. In the case of participants in World Trade Center rescue,
recovery or cleanup operations, little is known about what diseases and
conditions might develop later on based on their exposure to uniquely
hazardous conditions so as to recognize them as occupational diseases.
This bill requires that claims for latent conditions alleged to be
causally related to a hazardous exposure while participating in rescue,
recovery or cleanup operati
ons be treated for claims filing (statute of
limitations) and notice purposes in the same manner as an occupational
disease. Claims filing and notice provisions would begin to run from the
date of disablement determined by the WCB rather than from the date of
the actual exposure. As in occupational disease cases, the WCB has wide
latitude to set the date of disablement so that the claim of a partic-
ipant for a qualifying condition who discovered the presence or cause of
that condition at a date after participation ceased not to be barred by
the statute of limitations or for lack of timely notice. In cases where
the participant continues to work after seeking medical treatment for
the qualifying condition, the WCB would have latitude to set a date of
disablement so as to include such treatment as covered under the claim.
Claims for a qualifying condition can be determined to be compensable as
accidents under the WCL based on evidence that they are causally related
to a hazardous exposure during rescue, recovery or cleanup operations.
These complicated and unique issues of causation can best be addressed
by the WCB on a case by case basis.
To be eligible for occupational disease claims filing and notice treat-
ment, participants would be required to register with the WCB within
eighteen months after enactment of the legislation showing the dates and
location of their participation.
The bill also addresses claims handling and liability issues for two
distinct classes of workers who participated in the World Trade Center
rescue, recovery and cleanup effort, those who participated at the
behest of their employer and sustained injuries that arise out of and in
the course of that employment and those that participated as volunteers.
The employees are covered by their employers’ workers’ compensation
insurance. The bill provides that benefits for latent diseases will be
covered under the insurance policy covering the employer in question for
injuries sustained in the rescue, recovery and cleanup effort on the
date that the employee ended his or her participation in such oper-
ations.
Volunteers have been paid workers’ compensation benefits for all inju-
ries related to participation in rescue, recovery and clean-up oper-
ations by the Uninsured Employers’ Fund and reimbursed through the U.S.
Department of Labor out of a $50 million federal appropriation for that
purpose. The bill would clarify that benefits to these volunteers would
be financed only out of federal funds reimbursements appropriated for
that purpose and not otherwise be a liability imposed on the Uninsured
Employers’ Fund.

BUDGET IMPLICATIONS:
None.

EFFECTIVE DATE:
This bill is effective immediately is deemed to have been in effect on
and after September 11, 2001 and applies to all open and closed claims
coming within its purview.

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