downtownexpress.com
Volume 19 Issue 38 | February 2 -8, 2007

Joe Picurro on the World Trade Center Site in 2001.

9/11 workers struggle to get workers’ comp

By Chris Bragg

Half a dozen doctors testified on his behalf. Experts on 9/11-related diseases confirmed his claims. A picture of him working on a smoldering pile of rubble at ground zero offered hard evidence.

Still, for Joe Picurro, it wasn’t enough. The New York State Workers’ Compensation Board ruled he still hadn’t proven his health problems were due to his 28 days as a volunteer during the 9/11 cleanup. He hadn’t even proven he’d actually worked at the site, they said, saying the photograph could have been doctored.

It took two years, five hearings, an appeal to the New York State Supreme Court and several pleading media appearances before he thought he finally won.

Picurro looks back with anger on the time and effort it took for what he calls his victory: a check for $67.71 a week. “They throw us a bone every once in awhile to appease us,” Picurro said a few months ago. “The cheapest one possible.”

But then more recently the checks stopped coming and he will have to go back to court.

More than five years after 9/11, many cleanup workers who rushed to help the city in its time of need say they have developed serious physical conditions due to that work: 756 cleanup volunteers and many more paid workers have submitted claims. Many claimants say, however, the Workers’ Compensation Board has been slow in helping them get back on their feet.

In seeking a fraction of their income before their illnesses, workers say they have entered a maze of bureaucracy. They say it’s difficult to get hearings scheduled, and once they do, proving their illnesses are related to their 9/11 work is more difficult than in normal compensation cases.

Joe Picurro at a 2006 Christmas party held by the Feal Good Foundation. Named for injured 9/11 worker John Feal, the foundation helped the Picurros buy Christmas presents for their daughter.

Many cases have been pending for years and for some, the financial strain has grown too great to bear. “We’re numbers,” said Jeffrey Endean, a 9/11 volunteer and former commander for the Morris County Sheriff’s Office in New Jersey, “and next to those numbers are dollar signs that they don’t want to pay off.”

The Workers’ Compensation Board, established in 1914, was a compromise between workers and employers: New York workers gave up the right to sue employers for injuries in exchange for timely compensation and medical care if they were injured on the job.

For employees of companies hired to do 9/11 cleanup work, and for the unpaid volunteers who worked under government authorized rescue agencies, the board is the sole means of resolving no-fault claims. City employees, such as police officers, firefighters and sanitation workers, go through a separate compensation process.

For most cases that go in front of the board, an employer’s insurance company is responsible for challenging and ultimately paying off or settling a claim. Volunteer claims, however, are compensated out of a $50 million grant created shortly after 9/11 by Congress, which by special rule is also administered by the board.

For many of the workers, even getting started in the process can be difficult. They say it can take months just to get a hearing.

Louis Dauerer, president of the Injured Workers Bar Association, said the board has been “fixated on getting its number of hearings down” in recent years, adding that it’s difficult for all injured workers to get hearings these days, not just 9/11 workers. The number of workers’ compensation hearings in New York State has decreased from 407,983 in 2001, to 305,722 in 2005, according to the board’s annual reports.

Board spokesperson Jon Sullivan acknowledged that the board tries to reduce its number of hearings, but said that’s only because it wants to be efficient. “It doesn’t make sense to have a hearing if there’s nothing that moves the case forward,” he said.

Once hearings are scheduled, many 9/11 workers say they aren’t told what exactly they need to do to prepare, resulting in further delays in the case. Some say they don’t want to pay for a lawyer to help, citing New York’s already small maximum weekly compensation of $400 — a rate that hasn’t seen an increase since 1992.

Linda Carillo, who is 35 and lives in Far Rockaway, was a construction worker for 18 years before 9/11. Present as a volunteer in its immediate aftermath, she worked on a human assembly line that removed rubble from ground zero. She said she now suffers from serious respiratory problems and post-traumatic stress disorder. To date, her workers’ compensation case has been open for four years. She said she’s unable to work and has been forced into foreclosure on her house.

After waiting months for her first hearing she went to court, but her claim was denied because the board said she needed a letter showing she had respiratory problems. She’d had no idea she needed the letter, and it took her another year to reopen her case.

The Worker’s Compensation Board says 94 percent of its 9/11 related cases are “resolved.” The board does not say how many cases have been accepted or rejected, however, and worker case files are sealed.

Workers’ compensation lawyers say the term “resolved” is misleading.

The board is able to say a large percentage of cases are resolved because it routinely sends letters to claimants telling them their case needs “no further action.” According to Vic Fusco, of Fusco, Brandenstein and Rada in Manhattan, who represents a number of 9/11 workers, this puts the burden on the worker to file a new claim.

“All the issues that board can resolve are resolved,” said Sullivan, explaining the board’s process. “But we understand a resolved case today may need to be reworked tomorrow, because new issues come about.” He added that the length of time it takes to resolve a case can vary greatly, with complex 9/11 health cases often taking longer.

After Carillo refiled her claim with a chart from Manhattan’s Mount Sinai Medical Center showing a significantly decreased lung function, she faced an even more vexing problem. She was again denied, this time because there was no “causal relationship of the medical condition,” according to the letter sent to Carillo by the board.

It’s a problem for many 9/11 workers. Often, 9/11-related injuries are more difficult to prove than other workers’ compensation cases. Out of 756 volunteers that have submitted claims, 61 are currently receiving benefits, Sullivan said.

According to a recently released Mount Sinai study, 69 percent of 9/11 workers studied have developed new or worsened respiratory problems in the past five years. But the board doesn’t grant workers’ compensation for many of these types of claims. In 2005, it granted compensation for over 90,000 physical injuries, particularly to the back and legs, according to its annual report. In addition, it granted compensation for 5,000 occupational injuries caused by long-term physical stress, but half of those were chronic wrist injuries. Environmental or respiratory type injuries, however, were not listed.

“9/11-related illnesses are considered illness and not injury,” said Dr. Jacqueline Moline, director of the World Trade Center Medical Monitoring Center, which treats Picurro and Carillo. “If a man falls and twists his ankle, he would be compensated because they know the time and the date it happens.”

The only way to prove 9/11 cases is to find qualified doctors willing to testify on a worker’s behalf. The board requires doctors to have a “reasonable degree of medical certainty” that 9/11 caused a worker’s injury.

However, many workers go to respiratory specialists who can diagnose their illness, but cannot point to its cause. One reason is that until August 2006, the city Department of Health did not release any guidelines for diagnosing 9/11-related illnesses, leaving many doctors unaware of their symptoms.

Joe Picurro, 39, a native of Toms River, N.J., was an ironworker during the 9/11 cleanup, removing twisted metal in an effort to find bodies buried in the rubble. Now he’s been diagnosed with a number of serious respiratory diseases and leukemia, which has an uncertain link to W.T.C. dust and may take many years to establish. When he was initially hospitalized in the Toms River Community Medical Center, doctors told him he had the flu as he vomited up small pieces of his esophagus, according to his wife Laura Picurro.

His doctors were incredulous when she told them she believed 9/11 dust had caused her husband’s illness. “They said they had never heard of such a thing,” she said. They gave him an antibiotic. Only after a number of costly visits to different doctors did they finally learn he had scarring and particles of pulverized glass in his lungs. Picurro was unemployed at the time he volunteered. Because he lacked health insurance, the rounds of visits and hospital stays put the couple heavily in debt.

Often, doctors unfamiliar with 9/11 illnesses will attribute workers’ respiratory problems to a preexisting condition. Claimants who are smokers, like Picurro, particularly face this problem, although that would not have explained the pulverized glass in his lungs.

“Not many doctors are aware of the nuances because they don’t see the sheer numbers of people,” said Moline, who said she herself has been able to testify persuasively in a number of workers’ compensation cases because of her broad experience.

Albany tried recently to address some concerns about the board. In August, former Gov. George Pataki extended the deadline to apply for 9/11 related worker’s compensation, which had passed in 2003, until August 2007. The bill also included several measures intended to speed up the workers’ compensation process and to provide speedier access to medical care if a claim is being challenged.

Still, many frustrated workers and volunteers are now looking beyond the workers’ comp process to get the money they feel they deserve.

There are 8,000 people who have filed a lawsuit claiming negligence by the Environmental Protection Agency and the New York Port Authority, among others, for alleged misleading statements about the air quality at ground zero. The fate of the suit is still unclear.

There is also the possibility of reopening the “9/11 Victim Compensation Fund,” which Congress originally created just weeks after 9/11.

The original fund provided more than $38 billion to 9/11 victims and their families, and was paid for largely by the federal government. But the fund’s Special Master Kenneth Feinberg, who awarded money to workers who developed symptoms early on, decided that Congress had not intended the fund to compensate workers with injuries that would develop over a longer period of time, because there was no way of knowing the amount each claimant’s illness would eventually cost.

But now, some New York and New Jersey lawmakers, including Senator Hillary Clinton, want the fund reopened for those very workers. In September, they introduced a bill to allow workers to apply to the fund whose symptoms became apparent after the initial December 2003 deadline.

The original fund was unusual in several ways. There was no limit on how much could be spent, and compensation was decided outside the normal legislative or legal processes.

Francis McGovern, a professor at Duke Law School and an alternative dispute resolution expert, thinks that Congress as a whole won’t want to reopen the fund. “If you do this once, you could say it’s 100 percent unique,” he said. “But if you do it twice, you’re saying anything else like this gets federal funding to pay for it. I think the inclination of Congress, except Hillary Clinton, would be to let the tort system take care of these folks.” McGovern said a system similar to the asbestos trust recently proposed in Congress, which would have more financial constraints, would be more feasible.

Clinton and her New York colleagues in the House and Senate want $1.9 billion in new spending for continued 9/11-related medical monitoring, treatment and research for workers and residents affected by the attack.

Waiting on Congress and the courts, many workers have given up on their cases, preferring instead to rest and focus on their health problems, according to case workers and advocates.

Diana Salvador, a psychologist and former director of the 9/11 Family Wellness program, believes the stresses created by trying to go through the process only makes workers’ health worse. “There’s a sense of powerlessness,” she said. “Between the trauma and talking to the board and getting health insurance, it can become more than a full-time job.”

Carillo, with the bills mounting and having lost her house, said she’s starting to consider giving up her fight for compensation. “I’m tired,” she said. “I’m tired of telling my story over and over and nothing happening.”

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