The New York State pension system, which oversees state employees and local police and fire departments outside of New York City, has turned down more 9/11 World Trade Center line-of-duty-disability claims that it has approved, according to testimony Nov. 15 by a State Senate panel. The system also covers the employees of the Port Authority.
Colleen Gardner, the Executive Deputy Comptroller for the New York State and Local Retirement System, told the Senate Committee on Civil Service and Pensions that out of 331 applications for WTC disability pensions equaling 75 percent of final average salary, tax-free, “100 of those applications are still being processed. 115 applications have been approved, 101 have been disapproved for medical reasons and 15 were disapproved for administrative reasons.”
A Growing Clamor
The public hearing in lower Manhattan was convened by State Sen. Martin Golden, the committee chair, after his office was inundated with complaints by public workers about delays in the processing of the WTC-linked disability claims, a high rate of denials and in some cases actual mistreatment of the applicants by the examining physicians. Lawyers representing the claimants say that both the delays and denials have a major impact on the ability of their clients to get the optimum economic-loss settlement that they and their family are entitled to from the Federally-endowed 9/11 Victims Compensation Fund.
In 2005 Gov. George Pataki signed a bill which extended a legal presumption that public workers who were part of the 9/11 cleanup operations, and who later developed related diseases including cancer, respiratory illness, and certain skin ailments, would qualify for the three-quarter disability payment. To be eligible, a worker would have to have put in at least 40 hours at the lower Manhattan site. It also permitted civil servants to file for that three-quarter disability if they got sick after they retired.
“I find the denial numbers highly troubling,” Sen. Todd Kaminsky told Ms. Gardner. “They are basically one to one, and I just can’t imagine that one out of every two, whether it is a police officer in Nassau County or somewhere else, is wrong about their determination that they can’t work anymore.”
‘Doesn’t Make Sense’
“I literally have officers from Rockville Centre, from Suffolk, from Nassau who stop into my office and could fill up my conference table with their medication, who have a surgery next week, a surgery a month after,” Mr. Kaminsky said. “By the time that we are paying for basically all the different things they are having, it doesn’t seem to make financial sense to deny them that. I don’t know what’s happening. It seems to be an almost insurmountable hurdle to get this disability for people that I have seen have part of their tongue missing, part of their intestine missing, and tumors were taken out of their feet and hands, their face. I know a guy on his fifth facial surgery who works in my town.”
He continued, “I am talking about guys in one year will have taken like 50 sick days to deal with different surgeries they have and they can’t get disability and they are World Trade Center-certified…We know they were there. They have pictures of themselves at the pile. They have tumors removed. These guys are like 40-something year old. I don’t see how they don’t qualify.
Ms. Gardner defended her system and noted that her agency had both a robust and transparent appeal process. But she did concede, under questioning from both Senators Golden and Terrence Murphy, that cases could take as long as two to three years to resolve, that the agency’s move to electronic health records was still a year off from being operational, and that it was short-handed.
Mr. Murphy, a chiropractor, dug in on the lack of electronic-health-records capability at the agency, which had been mandated for all health providers back in 2014 by the Affordable Health Care Act.
“That’s probably why it takes two to three years to do this because you would immediately be able to have all that patient’s documentation as long as that patient has signed off on HIPA,” Mr. Murphy said. “Some of these guys that are out for two years waiting to retire, their life is turned upside down. There has got to him some kind of timeframe here…people have to be able to go on with their lives. That’s an eternity when you’re sitting home every day.”
In her opening remarks, Ms. Gardner described the balancing act of her agency, saying “So we are clearly cognizant of that goal to provide some support but at the same time, for any retirement benefit we do provide, we have a fiduciary duty to ensure that the benefits are provided to those that are entitled to receive them and prescribed by law.”
A prerequisite for participation in WTC-related health-care or disability coverage, as well as in the VCF, is the filing of a notice that documents the applicant’s eligibility. So far, the state retirement system has approved 4,735 such WTC notices of participation, with 136 pending applications. The deadline has been extended until Sept. 11, 2018. Sen. Diane Savino asked if the state system had a handle on how many potential participants had yet to come forward. “None of the employers took the time to compile a list of their workers that may have been working and sent down there at that time so they could send it to the retirement system?” she asked.
“Under the law, the responsibility for filing a notice is with the employee,” Ms. Gardner replied.
The committee also took testimony from Melanie Whinnery, who was appointed in September as Executive Director of the New York City Employees’ Retirement System, which handles disability claims for the bulk of city employees including Emergency Medical Service workers and those employed by the Department of Correction, the Department of Sanitation, and transit workers.
In an interview earlier this month, Senator Golden was critical of NYCERS’s handling of WTC disability claims in terms of both denials and the length of time it took to process the claims.
“In the short time I have been at NYCERS, I have seen first-hand that the independent medical board and the board of trustees take their responsibility very seriously in evaluating the World Trade Center disability-retirement applications that come before them to ensure that applicants are awarded the benefits to which they are entitled under the law,” Ms. Whinnery said in her opening remarks.
She and NYCERS General Counsel Ilyse Sisolak confirmed that their agency had received 977 WTC disability applications and that 111 of those applications were under active review. Another 299 applications have been approved while 365 were denied, meaning 45 percent of World Trade Center disability cases were approved.
EMS Approvals 52%
Another 202 claims could not be processed because the application was withdrawn, the member was deceased, or due to technical disqualifiers. For EMS WTC disability cases, the approval rate was slightly higher at 52.1 percent.
According to NYCERS, almost three-quarters of the total number of the denials across job titles were because “the applicant was found not disabled from performing their job duties.”
All told, NYCERS has received 10,256 notices of WTC participation but just 61.9 percent of those applicants have been verified as having participated in WTC rescue, recovery, and clean-up operations by their agencies. NYCERS officials disclosed that “there is an agency denial rate of 38.1 percent” where the city agency is unable to verify that the member participated in WTC rescue, recovery and cleanup operations.”
Short on Doctors
Ms. Whinnery conceded to the Senate panel that NYCERS was short-handed when it came to the independent medical professionals it relies on to render an opinion on the validity of the disability claims. The agency is actively trying to recruit psychiatrists to help it review the WTC-related Post Traumatic Stress Disorder claims.
The proceedings lasted several hours and the witness list included public workers with distressing accounts of what they described as a nightmare bureaucracy that required they hire lawyers to navigate.
Retired Emergency Medical Technician Sal Turturici, 52, last worked in October 2015 and was a WTC responder. He now is a terminally ill cancer patient, who finally got the disability pension at the beginning of 2017. But even that victory was hollow, he told the panel, because the diagnosis he finally got from NYCERS was for fatigue, which leaves his family without the benefits they would get if the cause of his death was tied to his WTC exposure.
‘Three Kids to Protest’
“I am a dying man. My time on Earth with my family is limited. I have three children to protect even after I am gone,” Mr. Turturici said. “I served the public for 16 years with honor and devotion and pride. I had the best job in the world and I was proud of it. I was proud of my uniform and badges.”
He continued, “When I was going through this process, I was asked to go to a medical board. At the medical board, I was demoralized. I was asked if the wheelchair I was in was mine or did I just find it outside. I was asked if my legs worked…I was asked to lift my shirt so I could show my surgical scars I had just received to confirm that I wasn’t an impostor.”
Mr. Turturici said, “Although my time is limited, I will not rest until the abuse, cruelty, and malice received at the hand of the NYCERS pension board have been reformed. Our pension is not a ‘get’ but what we earned and worked for, and eventually die for.”
Wife Sees Misery Ahead
His wife, Wendy, an EMT on leave to care for him and their three children, told the panel, “So, what’s going to happen—I will say goodbye to Sal, recover...then the fine NYCERS board is going to pull his decision, and what it is going to say is fatigue,” she said. “So, now I have to spend six to 18 months to prove that my husband died of his work-related condition. I am not the only one. I am just the one talking. There are so many members out there. The light switch is off, the children can’t go to the pediatrician, wives can’t go to the doctor’s and they lose their homes and that is the reality.”
In an interview after the hearing, Mr. Golden said he was going to work constructively with both the retirement systems to improve their performance. “We want to make sure we get the right cancers and the right diseases in there. We want to make sure that the employees and the people that were actually at 9/11 get the proper services and the proper designations,” he said. “We want to make sure that there is a way to expedite the process.
Ms. Savino was alarmed by the testimony. “Surprised doesn’t begin to describe it,” she said. “It is almost as if there is a cavalierness that is being displayed particularly toward 9/11 workers, but also in general to members of the pension system.”