By David King
The unseen effects of the Sept. 11
attacks on one hidebound state agency When people
think about the heroes of the World Trade Center
disaster, they think of the rescue workers, the
victims who organized escape routes, the firemen,
the police officers and the generous passersby who
stepped up to volunteer. All these brave people
are memorialized in the permanent World Trade Center
exhibit in the New York State Museum in downtown
Albany. In a building just a few blocks away from
the museum, at 20 Park St., and in another a few
exits down Route 787 at 100 Broadway in Menands,
there are people whose post-Sept. 11 work has been
quieter and less recognized, working one-step-removed
to help those heroes who were on the scene. The
workers at 20 Park St. and 100 Broadway are a group
of unlikely benefactors; they are the New York State
Workers’ Compensation Board.
In the wake of Sept. 11, 2001, the
WCB belied the usual stigma of red-tape bureaucracy
and lazy workers that is often attached to state
agencies, turning their own rules and established
practices upside-down to help both injured workers
and volunteers. And unbeknownst to most of the public
(any Workers’ Comp employee can tell you the
stigma is still intact), many of the changes have
been made permanent. The 9/11 disaster tested the
New York State Workers’ Compensation Board,
and a new, more sensitive agency has emerged.
The WCB was originally forged from
what some consider the second greatest workplace
disaster in New York’s history. On March 25,
1911, eight blocks south of Union Square in Manhattan,
the Triangle Shirtwaist Factory caught fire. Since
the building’s doors had all been locked to
keep the women workers inside from escaping, 146
workers died from the fire, many jumping in desperation
from the windows. Most of them were Jewish and Italian
teenage girls. The public backlash from the fire
led to an outcry from the working class for government
responsibility. Along with inspiring the passage
of dozens of workplace safety regulations, the fire
(and the pitiful compensation the families received)
also led to the passing of the Worker’s Compensation
Law of 1914. That law gave birth to the WCB.
New York law now stipulates that
almost every employer has to carry workers’
compensation insurance policies that are approved
by the state. If people are injured in the course
of employment or acquire an occupation-related illness,
they notify their employer, who files a claim with
its insurance carrier. The WCB is also alerted.
The board’s roles include identifying the
proper carrier, making sure the insurance companies
follow through, and adjudicating disputed claims.
If an employer is not insured, the board pays the
claimant directly, levies penalties against the
negligent employer, and attempts to get reimbursement
from the employer.
It’s a complicated process,
and the WCB has long been notorious among workers
and workers’ advocates for being difficult
to work with and full of red tape, frequently demanding
standards of proof that are out of reach for many
injured workers.
That was certainly the experience
of Walter Clickman, a 56-year-old Greenville farmer
who worked full time at night for a grocery store,
stripping and waxing the floors. After 12 years
working with the abrasive chemicals, Clickman found
it extremely difficult to breathe and was frequently
coming down with pneumonia. Everything became harder
to do because he was out of breath all the time.
He was diagnosed with chronic obstructive pulmonary
disease.
Walter filed a claim for workers’
compensation, but his employer insisted that there
was no proof his disease was caused by the chemicals
he used for so many years to clean their floors.
The WCB agreed, and Walter was left trying to hold
down a job without being able to take a full breath.
John, a 45-year-old Schenectady resident,
had been driving for a local courier company for
only two months when he was involved in a serious
accident. After a long recovery, John was unable
to hold a job due to uncontrollable seizures. John
assumed because of the severity of his accident
and the medical problems that followed that he would
be eligible for workers’ compensation. Instead
he found that due to the length and type of his
employment, he was not eligible.
In the past, injured employees such
as John have often found themselves out of luck
with Workers’ Comp for a number of reasons,
including being considered contractors rather than
employees or doing what is termed “casual
work,” such as handyman-type jobs or babysitting.
Most of the time, however, claims are denied based
on employers’ disputing workers’ accounts.
If evidence that a worker’s injury or illness
arose from the workplace can be disputed, the worker
is generally left to fend for themselves.
Then came Sept. 11, 2001. In the
hours immediately following the attacks it was hard
for anyone to imagine the effect that those events
would have on their daily lives over the next months
and years. From the pizza boy to the Wall Street
financial big-shots, everyone was uncertain of the
future—but not Mark Solomon, the senior Workers’
Compensation Board judge for the New York District.
Solomon, who had a view of the towers as they fell,
knew instantly that there were workers in the building
and that he would be part of the process to get
them compensation. “I heard the hit on the
way to work and knew we were going to have it,”
he commented recently.
“It was one of the biggest,
if not the biggest, office places in New York City.
We were all in shock,” says Edwin J. Ruff,
the advocate for injured workers at the board. Ruff
and the rest of the WCB heads were in a boardroom
that same day trying to anticipate the size of the
disaster and how they would deal with it. “We
had an office on the pier open the next day,”
says John Sullivan, the media-relations representative
for the WCB. “I was at work the next day with
my staff [and we kept at it] for 12 hours a day,
seven days a week, for 12 months,” Ruff remembers.
Training was set up for judges to
start dealing with the new claims. The WCB normally
receives 400-500 claims for death per year; in the
wake of the World Trade Center disaster they received
2,500. “We didn’t know the police and
rescue workers had done such a good job,”
says Sullivan. “We were initially wondering
if we would have 10,000 deaths.”
Under such extraordinary circumstances
it quickly became clear that some usual ways of
doing things were going to have to give. “The
chairman made it immediately clear to us that we
needed to make the process easier on everyone,”
says Ruff. So they did. The first step was to do
away with requiring proof of death and a death certificate.
An affidavit system was introduced that rested on
the word of family members that they had lost a
loved one. The affidavit system is still in effect
today for all death claims, not just those involving
9/11.
This change may seem like a small
concession, but it made a world of difference to
those who found themselves without any proof that
their family member was dead. For many who lost
family in the attacks, there was no body, and therefore
no way to get a death certificate. It also allowed
WCB workers to extend a hand of trust to the people
they were trying to help. Rather than coming off
as robotic, insensitive data collectors, WCB staff
were able to acknowledge how much the people they
were dealing with had gone through. Staff who had
before felt like they were part of an uncaring,
inflexible bureaucracy were now in a position that
felt just a little more human. As one worker put
it, “It was easier to do our jobs because
we made it easier on them.”
It also had been WCB policy to require
a hearing for every death case. That rule was quickly
revoked in the wake of 9/11. They also got Gov.
Pataki to issue an executive order doing away with
the requirement for injured workers to notify their
employers within 30 days of an injury. “In
a lot of cases the employers no longer existed,”
Sullivan points out.
One of the most important moves the
board made next was to approach insurance companies
to let them know they were expected to pay the Trade
Center claims very quickly. “We told insurance
companies to start paying and we would worry about
the problems later,” Ruff explained. According
to Ruff, the companies responded favorably and a
good many of them used the “payment without
prejudice” option that allowed them to start
paying victims immediately without accepting liability.
The WCB also took steps to encourage any lawyer
who was involved in a WTC claim to work pro bono.
Another move the board took was to
begin educating union reps on how to walk their
workers through the claims process. “We wanted
to make sure people know what to do from the moment
of injury to the date of a hearing,” said
Ruff. The board immediately set up meetings with
unions to find out their needs.
They also reached out to undocumented
immigrants. (The WCB works with people regardless
of immigration status.) The Windows on the World
restaurant at the top of Tower 1 employed many non-English-speaking
and undocumented people. “We got a list of
people and made sure we had people to communicate
with them,” said Ruff. WCB employees from
around the state volunteered to work as translators.
All of these changes would have made
little to no dent in the speed or amount of claims
being processed by the board if the WCB had not
begun modernizing and updating its communications
systems in 1997 to allow cases to be handled and
information to be accessed all around the state,
with files accessible in minutes rather than hours.
Cases were handled from New York City to Menands
to Buffalo, with every office pitching in.
Let’s make this happen: a WCB
employee prepares for a hearing.
Claimants who had dealings with the
WCB before 1997 (when everything was stored in paper
files) will tell you the experience was agonizing
and slow. A great number of agencies around the
country have yet to update their systems. If New
York’s board had been one of them, the results
could have been disastrous. “We have resolved
90 percent of the death claims at this time,”
says Sullivan. “If we were working on our
old, out-of-date system, we would still be working
on the first third of the claims.”
Some victims of the WTC attack needed
help from WCB right away. However, money was the
last thing on other victims’ minds. In anticipation
of the two-year deadline for filing claims, the
board launched an outreach campaign to make sure
anyone eligible to file a claim did so. The outreach
paid off, and there was a flood of claims, which
the WCB has just about finished processing.
“We had 10,000 unexpected claims
with a national spotlight on us and a huge emotional
factor that affected our employees and those we
were trying to help,” Sullivan emphasizes.
“Everyone in our offices all around the state
was anxious to do what they could to help.”
The WCB had a sharp increase in cases that were
settled without hearings, which reduced the stress
on workers and claimants.
The changes affected the board workers’
experience of their jobs as well. While WCB workers
are accustomed to dealing with people who have recently
been through devastating events, the torrent of
claims that followed 9/11 were more than the norm.
Just as everyone around the country did, they felt
a sense of urgency and commitment to somehow help
the victims of 9/11. By becoming more flexible,
rather than forcing people through the grinder of
bureaucracy, WCB workers were able to see themselves
as legitimate assistants to those who really needed
help. Workers say their jobs at the WCB and the
changes made there allowed them to feel a unique
sense of satisfaction. While friends and relatives
wanted to know what they could to do make a difference
for the victims of 9/11, members of the board were
immediately able to help, albeit in a small way.
Despite how out-of-the- ordinary
the Sept. 11 workers’ compensation claims
were, the system could be adjusted and played with
to accommodate the number and type of the claims.
But people who worked in the towers or for the fire
and police departments weren’t the only ones
injured in the attacks. There were also all the
volunteers.
The volunteers were not injured “in
the course of or arising from their employment.”
In fact, some were not employed at all. There was
no employer backing them up with insurance benefits.
No one had been paying for their safety.
Although the WCB had never dealt with
volunteers before, many of the claims workers became
quite familiar with the stories of the volunteers’
heroics from their interaction with the victims,
and the board felt obligated to try to assist the
heroic volunteers who weren’t technically
employed by anyone. So the WCB applied for a grant
from the Federal Department of Labor, received $25
million to use toward compensating the volunteers,
and established a set of guidelines to make sure
an applicant was truly a volunteer. The guidelines
stipulated that a volunteer had to have been directed
by an agency such as the Red Cross or other service
and have been working within a radius around the
WTC site or the Staten Island landfill. “We
have been quite liberal with our required proof,”
says Sullivan. “We’d rather be on the
side of giving benefits.”
They were determined to alert anyone
who deserved the benefits to their eligibility.
The WCB sent out packets to every known volunteer
and made calls to let them know what kind of proof
they would need. Out of the $25-million grant, $1
million has been spent to date. There are 588 registered
volunteers. Eighty-seven volunteer claimants have
been paid, but the vast majority have not pursued
benefits. “Very few claimants are pursuing
wage replacement,” says Ruff. “They
are more concerned with the long-term effects on
their health.” Those who have registered have
done so in anticipation of WTC-related illness.
With this grant, the WCB and all
of its employees find themselves in a position they’ve
never been in before. Rather than being able to
determine whether an insurance company should pay
workers, they are now in charge of grant money that
will be used to take care of WTC volunteers for
years to come. In this matter, the board cannot
push someone else to pay; the part they play in
the WTC volunteer matter is that of screener. It’s
up to the board now to decide the severity of the
injury and eligibility for compensation. They must
consider that the money they are giving out for
volunteers is coming from a limited fund that may
need to stretch through what appears to be almost
certain impending long-term illnesses. Board workers
may eventually find themselves having to determine
which volunteer is in a more deserving or desperate
situation. Workers at the board are well aware of
this fact and it is a weight that rests on their
shoulders. Never before have the workers of the
WCB been so directly responsible for the people
they are helping and it is not something they can
forget.
Captain Scott Shields is one of those
volunteers. On the morning of the 11th, he and his
rescue dog, Bear, traveled from Connecticut to help
out at the scene of the disaster. Bear was the first
dog inside the rubble. He played an integral part
in the rescue efforts and is credited with finding
the most victims, including FDNY Chief Peter Ganci
and FDNY Commissioner Thomas Feehan. Like many other
volunteers, Shields and Bear were injured during
their more than 18 hours in the rubble. Shield’s
legs were damaged severely, but he was alive. “I
had two fractured ankles and a knee. I can’t
walk anymore,” says Shields.
But what really concerns him is the
fate of his rescue dog, Bear, whose injuries from
the WTC site rapidly became cancerous. Within a
year Bear was dead. “Animals react quicker
to stuff like that than we do,” says Shields.
“It’s like canaries in the mine. The
building was cooled by freon; there were tons of
burning plastics. It’s like Agent Orange.”
The effect of the toxins released on the day of
the disaster is a strong concern for all those who
survived that day at ground zero.
So far the availability of the WCB
fund has only proved a partial comfort to volunteers
who are worried about impending long-term health
effects. “The people at the WCB have done
all they can. Some of them in particular have been
real angels, but most people are not worried about
the rescuers, and we are all sick,” claims
Shields. “Rescue workers will willingly give
their lives for anyone on any day and their backs
aren’t being watched.”
Shields points to what he calls the
Environmental Protection Agency’s deliberate
distortion in reporting the level of carcinogens
in the air in the city and around ground zero. “The
city is 100 times over the limit of carcinogens
and the EPA is lying through their teeth,”
Shields asserts. “They are more concerned
about real estate than people’s health.”
He also feels that more money is being spent on
researching the effects of the air at ground zero
than actually helping victims and providing health
care. He points to the $93 million that has been
granted to Mount Sinai, a major teaching and research
hospital in Manhattan, and wonders why more is not
being given for day-to-day health care for the victims.
However, the studies done at Mount
Sinai have actually confirmed Shields and other
volunteers’ fears. A study that included 1,138
responders revealed that nearly three-quarters of
them experienced new or worsened upper respiratory
problems, and half of them had upper and lower respiratory
symptoms eight months after the World Trade Center
attack. They were all also found to have suffered
extreme psychological effects.
Sullivan says the board feels that
its $24 million in unspent volunteer grant dollars
are insurance for the future, when more volunteer
health issues may arise. The two-year deadline for
filing after an accident has been waived for volunteers.
“We will be ready for them,” says Sullivan.
“We worked with Mount Sinai clinics. A lot
of money is going to screening, and it’s going
to continue because there is more cost there.”
But the weight of actually paying for treatment
down the road may rest on the WCB’s shoulders.
After pushing so hard to smooth the
way for payments to workers and volunteers, is the
board seeing any need to put the red tape back in
place? There were a few high-profile cases of people
making fraudulent applications to the Sept. 11 Fund
and other charities in the months after the attacks,
but Sullivan says they’ve had no indication
of people taking advantage of their newfound generosity.
“We did push the insurance companies to pay
and it’s our responsibility to make sure the
integrity is pure, but I don’t believe there
was anything close to an epidemic of fraud,”
he states confidently.
The WCB is still a bureaucracy. That
will never change. But the events of 9/11 have forced
the board to look at the way it deals with people.
There is a dark cloud on the horizon for the WCB
as they will be responsible for the 9/11 volunteers
whose health is already wavering. Good or bad, the
spotlight will be shining bright on them to see
how they take care of the heroes of our nation’s
most devastating terrorist attack.
“I was at work the next day
with my staff [and we kept at it] for 12 hours a
day, seven days a week, for 12 months,” Ruff
remembers.
“Very few claimants
are pursuing wage replacement,” says Ruff.
“They are more concerned with the long-term
effects on their health.” Those who have registered
have done so in anticipation of WTC-related illness.
Copyright © 2002 Lou Communications, Inc.,
419 Madison Ave., Albany, NY 12210. All rights reserved.
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