New 9/11 Presumption in Workers’ Comp Law

September 6, 2022
HomeBlogNew 9/11 Presumption in Workers’ Comp Law

One 9/11 hero’s demise from breast cancer highlights the desperate need to amend New York’s workers’ compensation law to align with federal law.

The story of a 52-year-old single mother from Brooklyn who died on November 20, 2015  might seem like one out of the thousands that year who suffered the same fate. Breast cancer affects almost 300,000 women each year. The disease accounts for nearly one out of every three cancer diagnoses and is second only to skin cancer in frequency. Tragically, breast cancer kills 43,250 women annually.

Cause Summary

The tale of this single mother, however, is different. This 9/11 hero’s story is proof of a broken system that is badly in need of an overhaul.

The mom who lost her battle with metastatic breast cancer in 2015 was a New York City Humane Law Enforcement Officer for the American Society for the Prevention of Animals. From September to December of 2001, she searched for and saved household pets that had been abandoned by their owners on September 11, 2001. Specifically, her job entailed working day-after-day in the immediate area of Ground Zero. Her work exposed her to the toxins that saturated the air in lower Manhattan.

No one could predict that someone who was trying to save the lives of innocent pets might suffer the same fate as first responders and rescuers who worked directly at the rubble of Ground Zero. Her situation differed, however, from many people who worked at the NYC Exposure Zone.

In 2014, this dedicated New York City employee received her breast cancer diagnosis. The disease advanced rapidly and metastasized in her brain. Consequently, she applied to the New York State Workers’ Compensation Board for benefits. She argued that her cancer arose out of and during the course of her employment.

Reasons for Claim Denial

The state workers’ compensation board denied her application. She appealed that decision to a workers’ compensation judge. The judge denied her claim as well.

Workers’ compensation law requires the applicant to prove that participating in rescue and clean-up operations at Ground Zero caused the illness or injury. The judge ruled that the applicant failed to meet her burden of proof. The judge found that the breast cancer she developed came from exposure to environmental pollution specific to her workplace. Then, this judge reasoned—quite illogically—that she would not have been exposed to the airborne contaminants if she had worked elsewhere.

The ruling judge believed that the woman fell ill because of circumstances that were related to her job—and not the job itself. The point is illogical because her employer instructed her to work in the contaminated area. In other words, she had no choice and worked at the behest of her employer.

Application Deadline

The judge cited another reason for denying her claim. The victim did not file her application timely. At that time, New York State workers’ compensation laws pertaining to people who had become sick or were injured from the September 11 terrorist attacks required applicants to file their request on or before September 11, 2014. The ASPCA officer could not meet that deadline under any circumstance: Doctors diagnosed her with breast cancer one month after the existing deadline. (The deadline to file the appropriate notice is now September 11, 2022.)

In another cruel twist of fate, the judge’s ruling came down four days before the woman died.

9/11 Compensation State vs. Federal Law

The decision of this workers’ compensation judge illustrates the difference between state and federal law. According to the World Trade Center Heath Program (WTCHP), breast cancer is a covered condition. Consequently, the person with breast cancer who applies to the WTCHP for coverage has no burden to prove the causal relationship between his or her exposure to 9/11 contaminants and the illness; the law assumes it. Otherwise, it would be nearly impossible for an applicant to prove causation. The WTCHP also requires proof that the applicant worked or lived in the NYC Exposure Zone at some point between September 11, 2001, and May 31, 2002.

Changes To 9/11 Victim Compensation

An amendment to New York’s workers’ compensation law seeks to resolve the conflict between state and federal law. Assembly Bill A9922A would align state and federal law if passed.

Assembly Bill A9922A eliminates the need for the applicant to prove causation for a 9/11-related illness or injury if the injury or illness is a covered condition under the WTCHP. The text of the bill that awaits delivery to the governor after passing the senate and assembly directs the workers’ compensation board to accept the certification of the WTCHP as presumptive evidence that the illness or injury is medically connected to 9/11.

Assembly Bill A9922A applies immediately upon the governor’s signature, and does something else as well: This bill permits applicants who received denials from the workers’ compensation board to reapply within two years.

Do You or a Loved One Have a 9/11-Related Illness or Injury?

The 9/11 compensation lawyers at Pitta & Baione dedicate their practice to assisting 9/11 victims in collecting compensation for injuries and illnesses. With over $300 million recovered for victims and their families, Pitta & Baione has the experience and track record of success you need to maximize your financial recovery. Contact Pitta & Baione 24 hours a day, seven days a week online, or by calling 844-901-1262.

9/11 documents fighting for workers compensation