An article by Anthony DePalma in today’s New York Times (registration required) outlines the onging saga of workers’ compensation claims stemming from the attacks on 9/11. In the immediate aftermath of the attacks, most of the approximately 3,000 fatalities probably involved workers comp: these people were working. They died at work. (Death benefits in New York are capped at a relatively paltry $50,000.) But what about the survivors? What about the first responders? And in ever-widening circles, what about people who suffered post traumatic stress simply by their proximity to the horrifying events?
In the 9/11 aftermath there have been nearly 8,000 claims filed with the New York State Workers’ Compensation Board. While the events themselves were unique, when it comes to workers compensation, it’s business as usual. Claimants must be able to prove a causal relationship between the 9/11 disaster and their disabilities. A number of the claimants with respitory problems are offended that insurers are not forthcoming with benefits. They tried to help after the horrendous events. They breathed the chemical-laden air. Over time, they developed chronic breathing problems, what is now referred to as “World Trade Center cough.” They believe their injuries — and the link between the injuries and their permanent disabilities — is obvious. But in the world of workers comp, one person’s “obvious” is another’s “ambiguous.”
DePalma describes the Brooklyn courtroom where the compensability of claims stemming from 9/11 is determined. He provides the example of a former subway conductor who handed out bottled water immediately following the collapse of the towers and then worked at the 34th street station, keeping order on the platform. Despite wearing a mask, he breathed in the dust and debris brought into the station by incoming trains. In the following months, his breathing became more labored. In August 2002 he suffered a massive heart attack and was unable to return to work.
Should he collect workers compensation? Company lawyers have brought up his long-time smoking habit as a potential factor in the heart attack. How can you distinguish between the work and non-work related factors in this situation? A lot of money is at stake. Ultimately, it will have nothing to do with the iconic stature of the 9/11 events. It’s simply a matter of the judge determining whether or not there is a disability, and whether the disability is work related.
One of the fundamental lessons of workers comp is that people respond to adversity in different ways. Two people witness the same event: one moves on with life, the other suffers from lingering post-traumatic stress and is unable to function in any work environment. The former continues to earn a living; the latter may collect disability payments for being unable to work. And the “one size fits all” workers comp system has to make sense of it all.
What is striking about the 9/11 situation is the scale of the event. It does indeed cast a long shadow. It has been described as the “largest acute environmental disaster” in New York history. Despite the magnitude, workers compensation will play out as it usually does: in a court of law, with the presentation of evidence on both sides. Workers comp may be “no fault,” but it is by no means “no friction.” It is a constant drama of human suffering, of medical interpretation, of “expert” testimony, of point and counterpoint. What is taking place in the Brooklyn courtroom plays out in a similar manner every day across America.