The Ground Zero Settlement Agreement and the Zadroga Bill: What Choices Are There to Make?

NEW YORK, March 19 /PRNewswire/ -- Since the Settlement Agreement was announced with the City of New York in Court on March 12, 2010, we have had a number of clients ask questions related to the James Zadroga 9/11 Health and Compensation Act of 2009 (introduced in the Senate under S. 1334 and in the House under H. 847).

Mainly, the questions have focused on how the Settlement Process Agreement (the “SPA”) affect the Zadroga Bill and what rights, if any, do I lose by accepting the Settlement? As explained below the short answer is: There are currently no “VCF” benefits in the Zadroga Bill that are not already covered in the Settlement Agreement so no such benefits will be lost by accepting the SPA. For a number of reasons, we believe that your compensation for 9/11-related injuries will be superior, more definite and come a lot sooner under the Settlement Agreement. In fact, in many ways, the Settlement Agreement provides you with more valuable benefits than the Zadroga Bill could for your present and future personal injuries.

Certainly, the SPA will provide you with certainty that you will not have under a Bill that has not even passed the Congress and may never pass Congress. The likelihood of the Zadroga Act passing Congress is minimal, at best. Congress has been working for nearly four (4) years and through two Sessions of Congress to pass the Zadroga Act. To date, only the House Judiciary Committee has taken up the bill. On March 16, 2010, The House Energy and Commerce Health Subcommittee capped the open-ended health care entitlement by establishing a limited fund to pay for the medical services, without a guaranty of continued funding. The full Energy and Commerce Committee has shown no inclination to take up the bill, and the Senate has yet to hold a single hearing on the bill.

What The Settlement Process Agreement (“SPA”) Provides Now That VCF Does Not Provide:

• Only the SPA enables you to obtain fair compensation for your claims of injuries against the City of New York and its contractors who participated in the rescue, recovery and debris removal operations at the World Trade Center site now, in the near term;
• Only the monies under the SPA are available presently and will start to be paid out in as soon as one hundred and twenty (120) days from today;
• The SPA only refers to claims against the City of New York and its contractors – and may not be a settlement of your entire case. Claims against the Barge/Pier contractor, the contractors at Fresh Kills and the Port authority will continue and, we hope, will ultimately result in further settlements and further allocations to our clients;
• The SPA creates a pathway for you to settle with the remaining defendants. Such potential future settlements may result in additional payments to you;
• The allocations of awards under the SPA will be made through an objective and transparent system based on your medical history, severity of illness, surgical procedures you may have undergone, time and exposures at the WTC or related sites, age and other factors;
• The allocations under the SPA will not be made by the defendants, their attorneys or by the court; rather a neutral independent claims administrator will oversee the process. The SPA offers compensation based upon the severity of the injury, and the strength of the legal claim, which takes into account the possibility of other explanations for the injuries alleged, and thus the likelihood of that claim prevailing in court. Spouses who have sued will also be compensated, at a percentage of the amount that the worker or volunteer plaintiff receives;
• Only the SPA allows each settling plaintiff not already diagnosed with certain forms of cancer to be enrolled in an insurance policy (subject to regulatory approval) through Met Life that will provide an additional payment of up to $100,000 should he or she contract a respiratory or blood cancer later on;
• Only the SPA has a Permanent Disability Fund of $57.5 million for plaintiffs who meet specific eligibility criteria and are found to be permanently disabled;
• Only the SPA will allow eligibility to share in a fund of up to $25 million in potential contingency payments;
• Only the SPA will allow claimants to collect the interest earned on the settlement amount that will accrue to your benefit while the money is being allocated;
• There will be payments made to any claimant who has undergone or is set to undergo certain types of surgery as a result of working at Ground Zero;
• However, history has shown that various persons in the SPA would not have recovered under the VCF eligibility requirements and, for others, their current injuries would be compensated with less money. Only the Settlement Process Agreement allows for recoveries of certain injuries;
• The VCF denied compensation to workers with the following illnesses: all cancers and pre cancerous conditions, blood disorders, stand-alone heart conditions, COPD, liver disease, kidney disease, and bone disease. The SPA pays claims for all cancers and pre cancerous conditions, blood disorders, stand-alone heart conditions and COPD;
• Only the SPA has a schedule of payments based upon severity of the asthma. The VCF had no schedule of payments based on severity for asthma;
• Only the SPA does not offset collateral source payments received from uniform and other disability benefits, including payments received from: NYCERS, NYPD, FDNY, SSDI, non-employment based disability insurance and any employment based disability pension program. In the VCF, any economic loss claims there was an offset, i.e., a reduction, for any disability payments received from: NYCERS, NYPD, FDNY, SSDI, workers compensation, non-employment based disability insurance and any employment based disability pension program;
• The Zadroga Act as proposed will not only include approximately 40,000 workers but over 400,000 residents diluting the average award available per person significantly less than the SPA.
• The SPA allows for unlimited liability and damage findings against the City and its contractors in the future for new cases. The Zadroga Act will cap damages available in give immunity to the City and its contractors.
• Lastly, the Zadroga Act does not provide for a transparent system of values paid for given treatments or injuries. In addition, you may be subject to a “binding arbitration” process and probably will still need an attorney to obtain your benefits, if any, due under the proposed Zadroga Act.

Under the very best circumstances –if the bill ultimately passes, it will take years to set up this process and distribute any monies. In the interim, you will lose the time value of the money you otherwise would be getting under the SPA.

The City of New York already funds programs providing a broad range of enhanced benefits to all workers involved in the WTC rescue, recovery and debris removal process, including free medical monitoring for workers, both uniformed and civilian. These programs are over and above any and all workers’ compensation and disability payments for which workers are eligible. New York also enacted legislation permitting firefighters, police officers and other public employees who participated in WTC rescue, recovery and clean-up operations to be presumptively entitled to an accident disability pension if they ever develop certain specified diseases, including cancer and respiratory illnesses. These programs will not be lost by signing on to the settlement process.

    
    
    Press Release Contact Information: 
    Ellen T. Davis
    Media Consultant 
    Worby Groner Edelman & Napoli Bern, LLP
    917-301-2918
    [email protected]

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SOURCE Worby Groner Edelman & Napoli Bern, LLP