By Ridgely Ochs New York Newsday
A rescue worker searches through a pile of debris from the World Trade Center collapse Saturday, September 22, 2001, in New York. (Credit: AP / Beth A. Keiser)
Advocates for 9/11 responders are calling on the state and its Workers’ Compensation Board to vigorously track down World Trade Center volunteers who might have been wrongly denied benefits.
On June 5, the Appellate Division of state Supreme Court ruled that the state Workers’ Compensation Board should not have refused benefits to 9/11 volunteers who worked in rescue, recovery or cleanup efforts but were not affiliated with an “authorized rescue entity.”
In its monthly meeting Tuesday, the 13-member board accepted the Appellate Division’s decision and said it would review “any reopening/reconsideration requests for claimants who have received decisions which were decided upon the volunteer/affiliation basis.Rachel McEneny, a spokeswoman for the board, said 407 people overall have collected money from the fund, and 139 volunteers now receive benefits through the fund, which was set up for 9/11 volunteers more than a decade ago. After an “exhaustive search,” she said, the board had identified nine additional cases of unaffiliated volunteers who had been denied benefits, three of which are pending before the Appellate Division.
She encouraged volunteer responders who might have been denied benefits to contact the board.
“If you feel you’re out there, call us up,” McEneny said.
But John Feal, founder of the 9/11 advocacy group FealGood Foundation, said he believed there were hundreds more unaffiliated volunteers and said the board should actively work to find people who might be eligible for benefits.
“Nine people just doesn’t cut it. If it’s just nine, I’ll eat my hat,” he said. “A lot of people have no clue this is there for them.”
In 2003, the state legislature, using federal money, established the $50 million World Trade Center Volunteer Fund to be administered by the Workers’ Compensation Board for disabled 9/11 volunteers. The board subsequently issued a policy stipulating that only those volunteers affiliated with “an authorized rescue agency or volunteer entity” such as the Red Cross were entitled to benefits.
A total of 1,652 have registered with the fund, which now contains $15 million, McEneny said. Most of the applicants’ claims have not been pursued, she said.
But in a pro bono appeal brought in 2013 on behalf of Jaime Hazan, 43, of Jersey City, the three-person panel ruled there was nothing in the statute that said a volunteer had to be affiliated with a group.
” . . . Neither the statutory language nor the legislative history supports the board’s requirement that an individual be affiliated with an authorized rescue entity or volunteer agency in order to qualify as a volunteer,” the panel wrote in its decision.
The ruling is vindication for Hazan, a former emergency medical technician then living on the Upper West Side who on September 11 came on his own to a triage center at the Chelsea Piers to help. The next day, he returned to search for survivors. Since then, he said, he has developed severe asthma, gastroesophageal reflux disease, rhinitis and anxiety and is unable to work full-time.
He initially was awarded benefits but that decision was overturned in 2012 based on the board’s policy on unaffiliated volunteers. Through the New York Bar Association’s pro bono appeals program, Hazan found a law professor at Albany Law School, Michael Hutter, who was willing to take his appeal for free.
“This has been the hardest thing in my life,” Hazan said. “To make these volunteers fight so hard when the law was put in place to make it easier, it’s absolutely egregious.”
He also was upset that the board would not proactively try to contact volunteers.
“After years of illegally denying benefits to sick 9/11 volunteer first responders, it is imperative that Gov. [Andrew] Cuomo immediately reach out to those claimants whose rights were illegally disregarded by the Workers’ Compensation Board and guarantee their cases to be swiftly reopened,” he said.
The governor’s office did not respond to repeated requests for comment.
Benjamin Chevat, executive director of 911 Health Watch in Manhattan, a nonprofit formed by unions, agreed with Hazan.
The board “clearly did not follow the intent of Congress when it provided the funding for this program and it needs to take responsibility for improperly denying benefits to WTC volunteers for all these years and not only provide benefits to Mr. Hazan, but it has to contact all of the volunteers they improperly turned away,” he said. “And it’s not clear that’s what they’re doing.”
Hutter said he came across eight other denials like Hazan’s in his research. He also said he identified 15 other denials that appeared similar but that he couldn’t easily confirm.
Hutter said he was attracted to the case because of his sympathy for 9/11 responders and because “it appeared this guy had a good case and I thought there was a good chance of reversal.”
The law professor said it was rare for an appeals court to overturn a Workers’ Compensation Board finding. But in this case, he said, “it was such a gross deviation from legislative intent, the court had no trouble agreeing with my argument.”
Troy Rosasco of Turley, Redmond, Rosasco & Rosasco, a disability law firm based on Long Island and in New York City, said the case was important.
“I see this decision as having a wide-ranging impact on a number of workers’ compensation issues in the future,” Rosasco said.
Any unaffiliated 9/11 volunteer who wants his or her case reconsidered should call the Office of the Advocate for Injured Workers at 800-580-6665.
