New Alarms About Delays by NYCERS In Ruling on 9/11-Linked Disabilities

Contesting the Obvious

Vincent Variale, who as president of Local 3621 of District Council 37 represents Emergency Medical Service officers, said, “We have a Captain working in the Bronx right now who has a tracheotomy” as a result of his WTC health condition “yet NYCERS has delayed ruling on his 3/4 disability pension for three months because they need to prove that he’s really ill.”

In some instances, what is needed from NYCERS is a reclassification of a 9/11 responder’s disability to reflect the worker’s evolving medical condition. Retired FDNY Paramedic Gary Smiley dove under his rig to escape the collapse of the WTC North Tower and spent over 400 hours on the pile. He was already granted a line-of-duty disability pension for his Post-Traumatic Stress disorder but not for his WTC-related asthma and other ailments.

A WTC-linked disability from PTSD, or any other 9/11-related psychological condition, no matter how disabling, is not eligible for a VCF award. Only medical WTC-linked disabilities qualify for VCF lifetime economic-loss-award calculations.

“The Social Security Administration examined me, they had all my medical records and determined that due to my WTC medical diagnosis I was permanently disabled from doing my duties as a New York City Fire Department medic,” Mr. Smiley told reporters at a City Hall press conference. “The New York State Workers Compensation Board looked at all my medical evidence and concluded I was disabled by my WTC certified illnesses.”

‘How Can Board Justify It?’

He continued, “So, what I want is for everybody to explain why the NYCERS medical board can find me only disabled by PTSD?”

Mr. Smiley said the protracted two-front battle with both his ailments and the bureaucracy had taken a toll. “I can’t afford to live anymore,” he said. “I lost my house in foreclosure. If it wasn’t for people like John Feal giving me a little bit of money, I would have been homeless.”

At a December 2017 State Senate hearing, attorneys for first-responders complained that NYCERS medical experts reviewing the WTC disability claims had no relevant experience to do it and that interactions were often adversarial and sometimes abusive. At that hearing, NYCERS conceded that it needed to fully staff its medical boards but said it was having a difficult time finding mental-health professionals to review the PTSD claims.

Mr. Feal, of the non-profit Feal Good Foundation, and a coalition of WTC-responder activists and lawyers, started attending NYCERS public meetings in hopes of raising the profile of their issues. Thanks to a series of subsequent meetings between the parties arranged by State Sen. Martin Golden, the agency’s performance improved and it started to win praise from the 9/11 advocates.

Backing Growing

But at last week’s press conference Michael Barasch, the attorney who represented NYPD Detective James Zadroga, for whom the 9/11 Zadroga Act is named, said “the Mayor needed to get NYCERS in line,” noting that there was a growing backlog of people waiting to get certified or reclassified and a lack of qualified medical specialists.

“There are time limits and we have to make this happen,” he said. “This must be a priority. These men and women didn’t wait. They took care of us. Now, it is our turn to take care of them.”

In a statement, NYCERS said it was still hiring staff to meet the demand.

“The appointing authorities continue to add specialists to the NYCERS Medical Board,” according to NYCERS. “Where additional expertise is needed, the NYCERS Medical Board uses independent medical examiners.”

Funds May Run Out

Part of the pressure that is building is related to the formal notice posted in the Federal Register by the Special Master of the VCF that the $7.4-billion fund could run out of money before it satisfies the valid claims it will receive by its shutdown date in December 2020.

“Current projections, using data as of Aug. 31, 2018, and at the current rate of dispersal, suggest a possibility that the funds that have been appropriated to compensate claimants pursuant to the Zadroga 9/11 Health and Compensation Act…may be insufficient to compensate all claims (including those filed and those anticipated to be filed) under the current policies and procedures guiding the calculation of awards,” according to the notice.

It asked for public comment “on how the remaining funds might be allocated in a fair and equitable manner…with priority given, as the Reauthorization Act requires, to those claimants with the most-debilitating conditions.”

In an open letter on the VCF website, Special Master Rupa Bhattacharyya said “there was no immediate funding crisis” but that there “is concern among some groups” that the VCF “may exceed its available funding prior to the currently designated program end on December 18, 2020, although I have not made any formal determination that funding may be insufficient.”

Disparate Treatment?

In a subsequent phone interview, Mr. Barasch noted that when the VCF was created by Congress in 2011, claimants were generally getting similar payouts, but when Congress extended its life three years ago, this “claim group B got less than the original group A.”

He said that based on conversations he has had with VCF officials, it was likely there would be a Feb. 1 deadline that would have the effect of creating a Class C of recipients that would get even less than previous applicants as the VCF attempted to stretch its funds to pay more claims.

“I want NYCERS to realize that for these people, time is really of the essence,” he said, adding that the impact on their VCF awards could range from tens of thousands to hundreds of thousands of dollars.

There is bipartisan congressional legislation to fully fund the VCF.

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