Welcome to Grey Matter

August 8, 2011
By Robert Grey

A Column Devoted to Workplace Safety

This week’s current event is the U.S. Department of Justice’s release of proposed regulations for the reopening of the Victim Compensation Fund under the Zadroga Act. The U.S. Department of Justice issued proposed regulations that will govern how victims of the World Trade Center site after 9/11 will or will not be compensated.

Over the next few months, the public will be able to comment on the regulations – which at present do not cover psychological illnesses or cancer cases.The Zadroga Act, which was signed into law in January, reopened the original Victim Compensation Fund and will award money for emergency workers and others who become ill as a result of site exposure.

To be eligible to recover from the original September 11th Victim Compensation Fund, the claimant had to prove that (1) he or she was at the World Trade Center site within 96 hours after the crash, and (2) a physical injury treated within 24 hours.

The 24-hour time frame was extended to 72 hours if the claimant could show that he or she didn’t realize the severity of injury and was later hospitalized for at least 24 hours. Exposure to smoke and ash was specifically not covered unless the exposure was associated with physical injury, which had to meet the time frame and hospitalization requirements. Awards under the fund were offset by “collateral sources” including workers’ compensation, Social Security disability, and disability retirement benefits.

The Zadroga Act did not create a new Victim Compensation Fund; instead, it reopened the pre-existing fund. It also provides funding for 9/11-related health-care for a five-year period.

The reopened fund is expected to accept claims beginning on October 2, 2011, although the claim forms have yet to be issued. Claims may only be filed for physical injuries – claims for psychological harm (including post-traumatic stress disorder) are not eligible for compensation. The fund has published a list of recognized WTC-related physical conditions, which do not presently include cancers.

Although the Victim Compensation Fund has been subsidized with approximately $2 billion, only $875 million is available to be paid within the first five years – and the fund’s administrative costs are to be deducted from those funds. As a result, any awards made by the Special Master will be paid in a “pro-rated fashion,” meaning only part of the award will be paid when the claim is decided. The balance of the awards will be held until year 6, when the remaining funds become available.  If the fund does not have enough money to pay the claims in full, then the money will be divided evenly or, “pro rata” among the claimants.

Like the original fund, awards will be reduced by payment from any collateral sources, which include any recovery from the recently settled WTC mass tort lawsuit. The proposed regulations also provide that attorney fees will be limited to 10%, and that if an attorney represented a claimant in the mass tort lawsuit and received a fee greater than 10%, no attorney fee may be charged.

It is likely that the proposed regulations will change during the comment process, and we will report on any differences in the final version. The proposed regulations and the process for submitting comments can be found at:

Grey & Grey, LLP is a law firm that represents workers who are injured on or off the job. The firm handles claims for workers’ compensation, Social Security Disability, disability retirement, and personal injury. In addition to representing individual workers, Grey & Grey provides training for union leadership, shop stewards, and members about their rights in cases of on-the-job and off-the job injury, as well as advice on contract and grievance issues that affect members who are injured on the job.


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