Insurance industry lobbyists recently proposed a COVID-19 (CV19) or Coronavirus compensation program modeled after the 9/11 Victim Compensation Fund (9/11 VCF)[1]. Whether such a fund will ever be created is yet to be seen, and purely speculative at this point. However, erring on the side of caution, we created some best practices for CV19 victims to follow with the lessons we learned in our 9/11 VCF practice.
In other words, with the benefit of hindsight, here is what we would have told our clients who were exposed to 9/11 toxins in Lower Manhattan or along debris removal routes between September 11, 2001, and July 31, 2002. As an aside, even if a CV19 fund is never created, and there are many reasons why this idea may be untenable, there are other current government benefits available to CV19 victims which would warrant adhering to the same best practices.
For each of our clients, we are creating an individual file containing the following details pursuant to an investigatory retainer agreement with no out-of-pocket fees:
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Document Your Exposure
The most difficult aspect of a 9/11 VCF claim is proving our clients were physically present in the exposure zone during the necessary timeframe. But, at least we know the specific boundaries of the exposure zone. For 9/11 VCF purposes, we know it means Lower Manhattan, south of Houston Street, a small sliver of Brooklyn, at official debris removal route locations, at morgues, and at garages where contaminated vehicles were maintained.
For CV19 victims, the most difficult thing will be proving where, how, and by whom a client was exposed to the illness. This is important as compensation may only be available to a distinct group of people (e.g. first responders, healthcare workers, essential employees, etc.), rather than the public at large. Documenting exposure may also be important to non-essential workers who are forced to violate government advisories by their employer.
Non-relative eyewitness affidavits with sufficient detail have proven to be the most reliable source of evidence in proving a 9/11 VCF claim. For individuals who contract CV19, we would recommend creating a running log of individuals who expressed CV19 like symptoms in their presence, or who have confirmed diagnoses because it may be difficult to isolate causation to a single exposure, and symptoms may take up to 14 days to appear. Physicians gave up on attempting to conduct contact tracing because there are too many cases to track. So, potential victims must log these interactions so that backtracking can be done in the event of diagnosis. To the extent that the contact information of these individuals is known, it should also be recorded in the log.
In addition to third-party affidavits, victims should swear to a contemporaneous affidavit indicating the exposure(s) and adherence to applicable social distancing advisories. If they were exposed at work, they should submit an incident/injury report to their employer. If they are being forced to work against a governmental order then they should document their concerns or complaints to their employer.
Additionally, they should save all records placing them at the location(s) where they were exposed (i.e. work logs, memo books, timesheets, schedules, etc.), with the caveat that copying such a document does not violate an employer’s policies.
One thing to point out is that city officials have advised all New Yorkers to assume they have been exposed to CV19. In a litigation setting, this would make it difficult to argue causation by specific defendant(s). In a fund setting, where there may be a presumption of causation, this may make it easier to prove eligibility, and open the fund up to every single person diagnosed in New York – not limited to occupation or otherwise.
2. Document Your Injury
If an individual presenting with CV19 symptoms is eligible for a test, then it is advisable to get tested. The test results, as well as any other medical records related to the diagnosis or treatment of CV19, including receipts for out-of-pocket expenses, should be maintained.
Our greatest concern for potential claimants is that the New York City Department of Health and Mental Hygiene has advised physicians to refrain from outpatient testing. In other words, if the symptoms do not require hospitalization, then a potential claimant would be unable to verify their diagnosis. Furthermore, anecdotally we have heard from clients that even if someone expresses CV19-like symptoms which do require hospitalization, the hospital still has not conducted testing because the results would not alter the course of treatment.
As stated above, so far, there is no indication that a CV19 compensation fund modeled after the 9/11 VCF will ever be developed. However, there are current benefits available (workers’ compensation, financial assistance, disability benefits, etc.) for CV19 victims that would justify the documentation of exposure and preservation of evidence. As we learned from 9/11 toxins exposure, it may take many years to understand the full breadth of the CV19 fallout.
After 9/11, the air was declared safe to breathe less than two weeks later; nine years later, the James Zadroga Health and Compensation Act of 2010 was passed, after the federal government officially identified the health consequences, as well as the need for monitoring, treatment, and compensation; twelve years later, the federal government recognized that 9/11 toxins exposure caused cancer; and presently, almost nineteen years later, we still do not fully understand the scope and extent of health consequences.
We do not know if CV19 may lead to other conditions.[2] What we do know is that proving an exposure to a harmful substance gets more difficult with every day that passes. What we also know is that harm of this magnitude should be well documented by victims to protect their legal rights-both actual and potential.
If you have questions about the Coronavirus Compensation Fund rumors or the 9/11 Victim Compensation Fund (9/11 VCF) or to learn more about Pitta & Baione LLP call us at 844-982-2667 or e-mail info@pittabaione.com.
- The September 11th Victim Compensation (9/11 VCF) is available to individuals exposed to toxins in Lower Manhattan, along debris removal routes, at morgues, and at garages where contaminated vehicles were cleaned/maintained. Originally included in the Air Transportation Safety and System Stabilization Act, the VCF was reopened in 2010 by the James Zadroga Health and Compensation Act, reauthorized in 2015, and in 2019 permanently authorized by the Never Forget the Heroes: James Zadroga, Ray Pfeifer, and Luis Alvarez Permanent Authorization of the September 11th Victim Compensation Act. The current 9/11 VCF submission deadline is October 1, 2090.
- Certain viruses have been linked to cancer, e.g. Epstein-Barr (lymphatic cancers and stomach cancer), Hepatitis B (liver cancer), Hepatitis C (liver cancer and non-Hodgkin’s Lymphoma), HIV (many cancers), HHV (sarcoma), HPV (cervical, throat, and others).
