Federal law provides new opportunity for WTC responders

NJ State PBA Legal Corner

By Robert A. Fagella, Esq., Paul L. Kleinbaum, Esq.

Although 9/11 occurred more than 20 years ago, the memory of that awful day remains fresh in the minds of many who were there. It is also now well known that the stew of toxins at the site have caused a variety of illnesses and injuries to the law enforcement officers and other first responders who provided assistance in those initial days. In this article, we address two of the laws available to assist first responders who developed disabling medical conditions as a result of their efforts during those difficult times.

To address the long-term effects of that exposure, the New Jersey State Legislature enacted the “Bill Ricci World Trade Center Rescue, Recovery, and Cleanup Operation Act” to provide accidental disability benefits for first responders, including a two-year window to file claims seeking those benefits under appropriate circumstances. The Ricci Act includes a wide variety of conditions that are covered, as well as requirements to meet the criteria to apply for and receive accidental disability benefits.

Unfortunately, the Ricci Act effectively expired in July 2021, thus excluding individuals who may have been on site and suffered an injury or illness which did not manifest itself until recently and failed to file within the timeframes.

Fortunately, Congress has addressed this issue. Under the “Protecting America’s First Responders Act of 2021” (PAFRA), Congress has opened the window a bit for injured first responders – living and deceased – to apply for a one-time death or disability benefit.

PAFRA was enacted in November 2021 and provides a new two-year window to again allow first responders to apply for a one-time death or disability benefit. Introduced by New Jersey Congressman Bill Pascrell, Jr., PAFRA provides a number of definitions and provisions to determine whether a first responder qualifies for disability. The application process is only open to those who have not previously filed such a claim, or to those whose claims had previously been denied in a final agency determination on the basis that the claimant was not totally disabled.

The law is fairly complex. It provides five methods in which an individual can meet the definition of “WTC Responder.” The first three methods require enrollment in the WTC Health Program, which was set up to provide monitoring for individuals who were exposed to toxins at the site but may not have shown symptoms. A fourth method requires a determination by the 9/11 Victim Compensation Fund (VCF) that the individual is an eligible claimant. The VCF, which compensates qualifying individuals for certain economic and/or non-economic losses resulting from 9/11-related illnesses, requires enrollment in the WTC Health Program. There are different registration requirements depending on whether a first responder has been certified to have a 9/11 related condition.

Additionally, the law provides that a law enforcement officer or WTC rescue, recovery and cleanup worker can meet the eligibility requirement if he or she “worked or volunteered on site in rescue, recovery, debris cleanup or related support services in lower Manhattan (south of Canal Street), the Staten Island Landfill or the barge loading piers for at least four hours during between Sept. 11 and Sept. 14, 2001, for at least 24 hours during the period beginning Sept. 11, 2001, and ending on September 30, 2001 or for at least 80 hours during the period beginning Sept. 11, 2001 and ending on July 31, 2002.” Put differently, the law requires that a first responder worked on site south of Canal Street in lower Manhattan, the State Island Landfill or the barge loading piers for at least four hours during the three-day period immediately after the attacks, for at least 24 hours during the 19-day period immediately after the attacks or for at least 80 hours during the approximately 10-month period following the attacks.

Once an individual meets these requirements, the next step is to determine whether their injury meets the definition of a “WTC-related health condition.” Applicable regulations provide that such an illness is one in which there was exposure to airborne toxins or other hazards following an examination by a medical professional with experience in treating or diagnosing health conditions included in the applicable list of WTC-related health conditions, and which are likely to be a significant factor in aggravating, contributing to or causing the responder’s illness or health condition. These conditions include, but are not limited to chronic respiratory disorder, asthma, exacerbated chronic obstructive pulmonary disease, chronic cough syndrome, chronic rhinosinusitis and sleep apnea. Most importantly, the treating physician must meet the requirements of a medical doctor who is conversant with, and has expertise in, treating or diagnosing WTC-related health conditions. There is then another review by a third-party medical consultant appointed to consider the initial diagnosis.

Of course, any law enforcement officer who performed WTC-related assistance in 2001 probably has more than 20 years of service already. Nonetheless, there may be officers who may not have manifested the symptoms related to the initial diagnosis of exposure, and only now are feeling its effect. With the expiration of the period for filing under the Bill Ricci Act in July 2021, those officers would no longer be eligible for an accidental disability retirement even though they might otherwise meet all criteria listed in that law. With the passage of PAFRA, a new, albeit slightly different, pathway has been opened for officers who might have missed the deadline to file for accidental disability retirement benefits, but who nonetheless qualify for a disability pension or monetary award.

The Ricci Act and PAFRA share many similarities. For example, both set forth similar geographical parameters, timeframes, impairments or health conditions and services performed in determining which individuals are entitled to file claims for disability benefits. Further, both contain similar requirements that, generally, the claimant is permanently and totally disabled as a result of a traumatic event/injury sustained in the line of duty as a result of the performance of regular or assigned duties.

However, the acts confer different types of benefits. Specifically, the Bill Ricci Act amended N.J.S.A. 43:16A-7 is a state law which governs accidental disability retirement benefits and entitled qualifying claimants to the presumption that their qualifying condition or impairment of health occurred during, and as a result of, the performance of their regular or assigned duties for purposes of eligibility for accidental disability retirement benefits. In contrast, PAFRA is a federal law and does not address accidental disability retirement benefits. Instead, it entitles qualifying claimants to a one-time lump-sum disability or death benefit of $250,000 subject to certain adjustments set forth in the applicable regulations.

This is a complex area which requires careful reading of the applicable law, diagnosis by medical professionals qualified in this area and significant documentation to demonstrate the events from 20 years ago. Consultation with experienced counsel and other professionals is clearly warranted if a first responder believes there is entitlement under this new law.