Zadroga 9/11 Compensation Claims Info

The WTC Scientific and Technical Advisory Committee (STAC) will have a new public hearing tomorrow, March 28, 2012, which could lead to certain types of cancer being covered under the Zadroga Act for health benefits and compensation from the 9/11 Victim Compensation Fund.

The new draft report of the WTC Scientific and Technical Advisory Committeee recommends to Dr. John Howard, Director of NIOSH, that over 20 types of cancer be added to the list of illnesses covered under the Zadroga Act.  The Zadroga Act lawyers at Turley, Hansen and Partners testified last year before Dr. Howard urging this result. It appears light may be at the end of the tunnel for 9/11 cancer victims.

The cancers recommended by the WTC Scientific Committee for inclusion are:

• Respiratory System Cancers, including cancers of the lung, nose, nasal cavity, middle ear, larynx, bronchus, trachea, and mediastinum; 
• Blood Cancers, lymphoma, leukemia, and myeloma;
• Digestive System Cancers, including cancers of the esophagus, stomach, colon, rectum, liver, bile duct, and peritoneum;
• Oral Cavity Cancers, including cancers of the pharynx, lip, tongue, mouth, gum, salivary gland, nasopharynx, tonsil;
• Urinary tract cancers, including cancer of the bladder, kidney and ureter;Prostate Cancer
• Thyroid Cancer
• Soft tissue sarcoma
• Skin cancers, including melanoma and non-melanoma;
• Mesothelioma
• Cancer of the eye and eye orbit
• Childhood Cancers (all), in persons 20 years old or younger
• Rare Cancers

The New York Daily News has an interesting editorial here regarding these new developments.  We will report more after the meeting tomorrow. 

Now that the World Trade Center Health Program Scientific and Technical Advisory Committee has recommended that the 9/11 Victim Compensation Fund  should be expanded to include cancer, the next major question is which particular cancers should be covered? 

Our office has long advocated to Dr. John Howard, Director of NIOSH, for inclusion of cancer coverage under the the re-opened 9/11 Victim Compensation Fund as part of the Zadroga Act.   We currently represent over 40 clients with different forms of cancer which their doctors believe are related to their exposure to toxins at Ground Zero or other impacted areas such as the morgue or Fresh Kill landfill.

So which types of cancer should be covered under the WTC Health Program and the 9/11 Victim Compensation Fund?  While we believe that every individual exposed to WTC toxins should be allowed to make their own medical case for inclusion of their particular cancer.  However, practically, we know that the World Trade Health Center Program will likely only cover certain types of cancer. 

At a minimum, Turley, Hansen and Partners believe  that the following types of cancer should be included in the World Trade Center Health Program and that claimants with such cancers should be allowed to apply for compensation through the 9/11 Victim Compensation Fund:

• Blood Cancers, including Multiple Myeloma, Leukemia and Non-Hodgkins Lymphoma
• Head, Neck and Throat cancer
• Oral cancer, including Tongue Cancer and Nasopharyngeal Cancer
• Thyroid Cancer
• Esophageal Cancer (Cancer of the esophagus)
• Lung Cancer, including Mesothelioma
• Kidney Cancer
• Bladder Cancer
• Prostate Cancer
• Colon Cancer
• Melanoma (skin) Cancer 

To use an analogy, are you a "conservative investor" or do you like to take more risk? Or said another way, are you willing to gamble with litigation and pay your lawyers 25 or 33 1/3 % of a potentially higher return, or would you rather receive a quicker determination from the 9/11 Victim Compensation Fund re-opened by the James Zadroga Act and pay your lawyers only 10% as capped by law?

As reported by the Associated Press on 12/25/2011, if you are one of the estimated 1600 responders who still have a pending 9/11 lawsuit (not one where you are simply waiting to receive full payment), you have a choice to make prior to January 2, 2012.   Therefore, you essentially have to make the decision now.

Under the Zadroga Act, in order to claim benefits under the 9/11 Victim Compensation Fund, anyone with a pending 9/11 related lawsuit must withdraw from such lawsuit by January 2, 2012. The details of what one has to do to withdraw from such a lawsuit are below:

2.13 If I participated or am currently participating in a lawsuit related to September 11th, can I participate in the VCF? (Updated: December 5, 2011)

Yes, if you withdraw from the lawsuit or settled the lawsuit as described below. Therefore, if you or any dependent, spouse or beneficiary has filed a lawsuit or have been a party to a lawsuit in any Federal or State court relating to or arising out of damages sustained as a result of the terrorist-related aircraft crashes of September 11, 2001 or for damages arising from or related to debris removal (other than a lawsuit to recover collateral source obligations or a lawsuit against any person who is a knowing participant in any conspiracy to hijack or commit any terrorist act), you may be able to obtain compensation from the VCF if you meet the following conditions (and if you are otherwise eligible):

• Pending actions: Individuals who have filed a lawsuit described above or who are a party to such a lawsuit may not file a claim with the Special Master unless they withdraw from such lawsuit on or before January 2, 2012. You must submit proof of timely withdrawal with your claim. For purposes of the Eligibility Form, you may submit either a court order establishing that the action has been discontinued and/or dismissed dated on or before January 2, 2012 or a notice/letter of withdrawal filed on the ECF system in the relevant docket on or before January 2, 2012. For purposes of receiving compensation, you must submit the final order of the court confirming the withdrawal or dismissal or all claims. That order may be dated after January 2, 2012 only if you have provided proof that you filed a notice of withdrawal on the ECF system in the relevant docket on or before January 2, 2012.
• Settled actions: In the case of an individual who settled a lawsuit described above, such individual may not submit a claim with the VCF unless the lawsuit was commenced after December 22, 2003 and a release of all claims in such lawsuit was tendered by the individual, or by the individual’s attorney (provided the attorney has authority to tender the release) prior to January 2, 2011. You must submit proof documenting the date of commencement and release of all claims with your claim. If an attorney signed and submitted the release on behalf of the individual or the individual’s dependent, spouse or beneficiary, a copy of the retainer agreement with the attorney in the settled lawsuit must be submitted as proof that the attorney was authorized to sign the release.

If you have participated or are currently participating in such a lawsuit, you must certify on your claim form that the above conditions are satisfied.

So, should you withdraw?  Bottom Line - every individual must make the decision based upon the facts of their own case, unbiased competent legal advice and their own tolerance for risk. Clearly, the litigation route is riskier because lawyers will have to prove "fault" by the defendants, while the 9/11 Victim Compensation Fund is a safer because you only have to prove damages.  However, the litigation route could lead to a greater recovery, even after you pay the higher percentage attorneys' fees.

Can you get unbiased advice from an attorney who stands to gain more fees in litigation? I am not so sure.  Read the letter here from the law firm of Worby, Groner Edelman & Napoli Bern, LLP dated 12/21/2011 which was sent to one of my clients  and followed up with a phone call, urging him to reconsider his previous decision to apply for the federal Zadroga Act 9/11 Victim Compensation Fund. You be the judge. In my opinion, these types of letters almost demand an second legal opinion.

When I pointed out to my client that the letter from Worby Groner itself was factually wrong - he has been receiving Social Security Disability benefits for some time -  my client decided to stay with the safer and potentially more generous 9/11 Victim Compensation Fund.  

As John Feal urges in the attached letter, be careful out there and make the right decision in based upon the facts after advice from an attorney you trust. 

If you do choose to withdraw from your pending lawsuit in favor of Zadroga Act benefits, I suggest you send your current litigation lawyer a letter by FedEx tomorrow stating that you wish to "withdraw from any and all pending 9/11 lawsuits" and asking them to "take all actions to preserve my right to file a Zadroga claim".  Unfortunately, you really need to do it now!  Good luck! 

Yesterday, September 11th Victim Compensation Fund (VCF) Special Master Sheila Birnbaum released the final forms necessary for any claimant to fully file a Zadroga Act Victim Compensation Fund Claim. The official 21 page instruction form for personal injury claimants and/or their attorneys to file for "compensation" from the 9/11 Victim Compensation Fund can be downloaded here for your use. 

Whether or not you are currently represented by counsel, any eligible claimant can officially file 9/11 VCF claims as of today.  Please make sure to review the "9/11 Victim Compensation Fund Document Checklist" before filing, which can be downloaded here also. While the VCF is strongly encouraging online filing, you may also file your claim through the mail.

There is now light at the end of the tunnel for claimants who are sick because of their rescue, recovery and cleanup work in the Ground Zero "crash site" area. We expect that the Special Master will be making award determinations throughout 2012. It should be noted that claimants need not rush, and have until October 13, 2013 to file a claim. However, it is expected that those who are currently in dire financial circumstances (like many of our clients) will be filing their September 11th Victim Compensation Claims as soon as possible.

If you have any questions about filing a claim through the 9/11 Victim Compensation Fund under the Zadroga Act, do to hesitate to call either Daniel Hansen, Esq. or Troy Rosasco, Esq. at 1-855-WTC-INFO (1-855-982-4636).   In addition, do not forget about the free VCF legal clinic coming up in Manhattan on December 13, 2011.        

The new Zadroga Act 9/11 Victim Compensation Fund officially opened for business today for "registration" only. However, no one can file a claim for compensation yet because the actual "Compensation Claim" forms will not be ready until the end of November at the earliest.

In a surprise move, VCF Special Master Sheila Birnbaum has established a three step "phased in" application process starting today. The 3 steps are as follows:

1. Attorneys (or claimants without representation) can immediately "register" for the 9/11 Victim Compensation Fund here.  This registration process includes basic claimant information (including if they are represented by an attorney), the status of the claimant and information regarding "presence at the crash site";
2. A new 9/11 VCF "Eligibility Form" will be released to the public on or about 10/28/2011. This eligibility form will ask questions about the nature of your injuries, why you were at the WTC site, whether you participated in the WTC Health Program and whether you participated in any prior 9/11 related lawsuits;
3. On or about November 28, 2011, the Special Master will finally release the actual "Compensation Claim Form", which will ask questions on medical expenses, out-of-pocket costs, loss of earnings, loss of replacement services (did you need to hire a cleaner or a landscaper?), burial expenses when applicable and possible collateral source offsets that may decrease your award.

Eligible claimants will be able to see a new "9/11 Victim Compensation Fund Document Checklist" so they or their representatives can start assembling all necessary documents to perfect the claim.  Finally, the Department of Justice and Special Master Birnbaum have launched a new Zadroga 9/11 VCF Website  for the future dissemination of information.

This is the beginning of the process for our clients and and many others. I was asked in a television interview today how long the process would take from application to receipt of at least partial compensation awards? This will be affected by the number of applicants and the amount of Justice Department staff dedicated to the Fund. That being said, I predict that once an application  is deemed "substantially complete" by the Special Master, an initial decision on compensation should take between 3-6 months.

We will all need patience as we carefully navigate the procedures of the new fund. However, Ms. Birnbaum has made a good start with the "open and transparent" process she has promised from the beginning.