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Date: August 21, 2006
On August 14, 2006, Governor Pataki announced a comprehensive plan designed to extend the time for employees and volunteers injured in the rescue, recovery and cleanup operations after the September 11, 2001, terrorist attacks on the World Trade Center to file a claim for workers' compensation benefits and to receive prompt access to medical benefits while their claims are being litigated. Although it has been almost five years since the tragic events of September 11th, many people who participated in the rescue, recovery and cleanup efforts may have hidden health issues or suffer serious, disabling medical conditions that developed more than two years after their participation which may entitle them to workers' compensation benefits.
As a key part of his plan, Governor Pataki signed into law Article 8-A of the Workers' Compensation Law (hereinafter "WCL"), which extends the time for employees and volunteers who participated in rescue, recovery and cleanup operations following the September 11, 2001 terrorist attacks on the World Trade Center to file claims for workers' compensation benefits, provided they register with the Board before August 14, 2007. (Chapter 446 of the Laws of 2006). In order to register, those employees and volunteers who participated in World Trade Center rescue, recovery and cleanup operations (hereinafter "WTC operations") must file with the Workers' Compensation Board (hereinafter "Board") a sworn statement, on Form WTC-12 , listing the dates and locations of their participation in the rescue, recovery and cleanup efforts.
The filing of the registration form (Form WTC-12) does NOT constitute the filing of a claim. The filing of the sworn statement does however extend the time to file a claim. With respect to claims that were previously filed and denied as untimely under WCL §18 or §28, upon the filing of the sworn statement the claim will be reopened by the Board to reconsider this claim. This new legislation is effective immediately and is deemed to have been in effect since September 11, 2001. It will apply retroactively.
A number of key terms are defined in new Article 8-A. WCL §161 defines a "participant in World Trade Center rescue, recovery or cleanup operations" as any employee or volunteer, who between September 11, 2001 and September 12, 2002: (i) participated in the rescue, recovery or cleanup operations at the World Trade Center site; (ii) worked at the Fresh Kills Land Fill in New York City; (iii) worked at the New York City morgue or the temporary morgue on pier locations on the west side of Manhattan; or (iv) worked on the barges between the west side of Manhattan and the Fresh Kills Land Fill in New York City. The term "World Trade Center site" is defined as "anywhere below a line starting from the Hudson River and Canal Street; east on Canal Street to Pike Street; south on Pike Street to the East River; and extending to the lower tip of Manhattan." Finally, a "qualifying condition" means "any latent disease or condition resulting from a hazardous exposure during participation in" WTC operations.
This legislation also modifies the employer notice requirements with regard to claims for "qualifying conditions" resulting from participation in WTC operations. Under the Workers' Compensation Law, a claimant is required to provide notice of a work-related injury to his or her employer "within thirty days after the accident causing such injury" WCL §18. However, pursuant to WCL §163, a claimant with a "qualifying condition" will have two years from the date of disablement or the date when he or she knew or should have known that the latent condition was causally related to his/her participation in WTC operations to provide notice to the employer who employed the participant at the time of his/her participation in the rescue, recovery or cleanup operations. In the case of a volunteer, the volunteer must provide notice to the Board within two years of the date of disablement or the date when he/she should have known that the latent condition was causally related to his/her participation in WTC operations.
Article 8-A applies to all pending and future claims filed or to be filed by participants in the World Trade Center rescue, recovery and cleanup operations, including those claims already disallowed because timely notice was not given to the employer (WCL §18) or the claim was not timely filed with the Board (WCL §28). WCL §165 expressly provides that claims previously brought by employees and volunteers who participated in WTC operations, which claims were disallowed based on the claimant's failure to provide timely notice to the employer or to file a timely claim for benefits, will be reopened and redetermined in accordance with the provisions of WCL Article 8-A, provided the claimant files a sworn statement with the Board before August 14, 2007.
WCL §166 makes clear that claims brought by employees who participated in WTC operations in the course of their employment will be the liability of the insurance carrier on the risk for the employer on the date that the employee last participated in WTC operations, which is considered the date of accident. With respect to claims by volunteers, WCL §167 provides that benefits will be payable out of federal funds appropriated to the Board for that purpose. However, the uninsured employers' fund shall be deemed to be the employer only for the purposes of administering and paying claims for which it will be reimbursed from federal funds. Benefits to volunteers are payable to the extent that federal funds are appropriated and available for that purpose.
Employees and volunteers who participated in rescue, recovery and/or clean-up operations at the World Trade Center site, the Fresh Kills Landfill, the New York City morgue or temporary morgue or the barges between the west side of Manhattan and the Fresh Kills Landfill between September 11, 2001 and September 12, 2002, who were exposed to hazardous conditions must file the registration statement, Board Form WTC-12, before August 14, 2007, in order for the provisions of Article 8-A to apply. Employees and volunteers who do not file the registration statement before August 14, 2007, will not have the benefit of the statute of limitations and notice provisions in Article 8-A. Instead, such claims will be governed by the provisions of WCL §18 and §28, which require notice to the employer within 30 days of the accident and the filing of a claim within two years.
WCL §21-a allows an employer or its insurance carrier to pay workers' compensation lost wage and medical benefits to an injured employee for up to one year without admitting liability for the claim and without prejudice to its right to controvert the claim. At any time during that one-year period, the employer or carrier may provide notice that it is ceasing temporary payments and may then controvert the claim if its investigation reveals that it should not be liable.
Rather than automatically controverting the claim, self-insured employers and workers' compensation insurance carriers are encouraged to voluntarily pay lost wage and medical benefits pursuant to WCL §21-a in those claims in which liability is uncertain and more time is needed to investigate the claim. Doing so will provide benefits to injured claimants, while preserving the right of an employer or carrier to later controvert a claim based on the results of its investigation. The employer or carrier is required to provide notice to the claimant and the Board that payments without prejudice have begun by filing Form C-669. Termination of temporary payments by the employer or carrier must be in accordance with the five day notice provisions of WCL §21-a (3).
In claims arising out of employee participation in World Trade Center operations which are controverted by the self-insured employer or insurance carrier, the Board, in the interest of justice, has directed the World Trade Center Volunteer Fund to temporarily pay for a claimant's causally related medical treatment, until liability for the claim is ultimately determined. The World Trade Center Volunteer Fund is the money appropriated by the federal government to the Uninsured Employers' Fund (hereinafter UEF) for claims of volunteers. If claimant's employer or its insurance carrier is ultimately determined to be liable for the claim, the employer or carrier will reimburse the UEF for the cost of medical treatment paid while the claim was being litigated upon demand therefore. Any notice of decision containing a finding that the employer or its carrier is liable to pay the claim will include a direction to the employer or carrier to reimburse the UEF for amounts paid from the World Trade Center Volunteer Fund within thirty days from presentation of a demand by the UEF for reimbursement.
Self-insured employers and insurance carriers who have controverted claims by employees for injuries or illnesses caused by participation in WTC operations, which have not yet been established, are directed to submit to the Board within 15 days of the date of this Announcement, and monthly thereafter, an itemized list of all medical bills to be paid from the World Trade Center Volunteer Fund detailing the date of treatment, name and address of the medical provider, diagnostic codes and the amount of the outstanding medical bill(s). The medical bills and the accompanying medical reports must be attached to the itemized list. Board Form WTC-16 MUST accompany each itemized list with attached medical bills and accompanying medical reports sent to the Board for payment initially and monthly thereafter.
Health Providers must still request authorization from the self-insured employer or insurance carrier. The self-insured employers and carriers are directed to timely respond to all requests for authorization for special medical services pursuant to the procedures outlined in WCL 13-a(5) and 12 NYCRR 325-1.4(b).
Health Providers must continue to forward medical bills to the insurance carrier of record. Reimbursement for pharmaceutical expenses will be accepted although reimbursement for claimants travel allowances will not be payable from this fund.
Medical providers are required by law to seek prior approval from the employer or its insurance carrier for any procedure costing more than $500. Sometimes the required approval cannot be obtained in a timely fashion. Recognizing this, the Board developed a procedure in 2002 to enable medical providers to request Board intervention whenever an employer or insurance carrier fails to promptly respond to a request for authorization, a procedure commonly referred to as the "MD-1 process". See WCB Subject Number 046-116, issued November 24, 2003.
Employers and insurance carriers are urged in all cases, and particularly in those claims arising out of an employee or volunteer's participation in WTC operations following the September 11, 2001 attacks, to promptly respond to all requests for authorization of medical treatment. Additionally, medical providers are strongly encouraged to take advantage of the Board's MD-1 process when they do not receive a prompt response to a request for medical authorization.