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The Zadroga question: to pay or not to pay

Published: July 27, 2011

Publication: Downtown Express

By Aline Reynolds and Terese Loeb Kreuzer

For many years, free medical treatment has been available to residents, students and Lower Manhattan workers who were exposed to the Sept. 11, 2001 attack and its aftermath. But the James Zadroga 9/11 Health and Compensation Act that Pres. Barack Obama signed into law in January 2011 opened the Victim Compensation Fund to this group for the first time.

Sheila Birnbaum, who was appointed special master of the V.C.F., has held many public meetings to explain eligibility and how to apply for benefits as well as to solicit feedback on the ground rules. Birnbaum will be arbitrating the September 11th V.C.F. cases for free, and expects other attorneys to do the same.

Birnbaum is on the hunt for pro-bono attorneys that could help victims fill out V.C.F. applications—the latest form of encouragement she is giving to the victims to apply for compensation on their own. Birnbaum’s intent is to find legal support for any of the estimated 30,000 V.C.F. claimants who prefer not (or simply don’t have the financial means) to hire an attorney. “If there’s very little lawyers need to do, there’s no point in them paying 10 percent to the lawyers,” she said.

Birnbaum plans to avoid holding initial hearings to reserve as much of the $2.75 billion in federal funds for the 9/11 victims as possible. “I could not think of taking a dollar out of the pockets of victims,” she recently told Community Board 1’s World Trade Center Redevelopment Committee.

On July 21, a not-for-profit legal group called Advocates for Justice with offices at 225 Broadway held a briefing at the Museum of Jewish Heritage in Battery Park City to explain the intricacies of the bill. Around 20 people attended the meeting.

“The purpose of this meeting is to share information. This is not a solicitation for business,” said Chris Owens, executive director of Advocates for Justice. “There is a time period to the commentary for the Special Master,” he said, referring to Birnbaum. “It closes on Aug. 5 for recommendations from the community as to how certain things should be done. Unfortunately, there are not that many meetings that have been scheduled by other entities in the communities that have been affected to get your feedback.”

Owens and Advocates for Justice president, Arthur Z. Schwartz, an attorney, explained how the distribution of the funds would work.

“The amounts people will get will be determined not only by whatever illness they have but by the number of people who apply,” said Schwartz.

The first Victim Compensation Act in 2001 required that each person who applied meet individually with a lawyer who was employed by the Fund. People had to submit medical evidence in documentary form and had to make a presentation. There were around 3,000 applications, which took a long time to process.

“Birnbaum told me yesterday that she’s trying to come up with a procedure whereby certain categories of illness will get certain amounts of money,” said Schwartz.

This should streamline the process and keep administrative costs to a minimum.

Congress has limited the payout to $875 million through 2015. For most people, there will be a two-part payment with a minimal payment up front and a final payment after 2016 based on the total number of people who applied for the fund and the nature of their injuries.

“It’s important to understand that this is not going to get anybody huge sums of money,” said Schwartz. “This is not going to aid people who died but to aid people who suffered physical injuries. Congress didn’t allocate anywhere near the amount of money they allocated the first time around.”

The New York City Bar Association is also proposing to organize group “clinics” starting in the fall for claimants wishing to represent themselves. Victims will be instructed on the application process and then meet individually with a staff of approximately 50 attorneys to discuss their personal legal options, according to Lynn Kelly, executive director of the City Bar Justice Center.

“This is a service for people so they can readily fill this out and submit it with quick consultation,” Kelly said. The goal, she said, “is really to have people seen quickly and easily, and answer questions they might have.”

Though the service could help orient the victims in how to go about procuring medical evidence for their claims, Kelly warned that N.Y.C.B.A. doesn’t plan on helping victims appeal their cases. “We’re probably not going to do the one-on-one representation… it’ll be a one-shot legal approach,” she said.

“I’m hopeful that we’ll put together a program of pro-bono lawyers to assist people that want [free] assistance through the various law associations of the City of New York,” said Birnbaum.

Some lawyers, however, are warning that pro-bono help may very well be a bit too optimistic for this program. The V.C.F. cases will often require extensive medical research that as time-consuming as it is costly, according to Frank Andrea, a partner at Andrea and Towsky, who represented John Feal in his personal injury lawsuit against Turner Construction Company and the city.

“It’s more complicated than filling out a few forms and writing down what your injuries are. The smart thing to do would be to be represented by an attorney,” said Andrea.

The ten percent commission cap, mandated by the U.S. Department of Justice, is “a very low” contingency fee compared to an attorney’s typical commission of 33-and-a-half percent, noted Andrea.

“Ten percent is kind of like going pro-bono, in a way,” said Andrea.

Another attorney, who requested anonymity, echoed that free legal representation, even in the application stage, is simply not feasible for the amount of specialized work required in the V.C.F. cases. “I’m concerned this push for pro-bono is going to make lawyers look bad, when this is just not a realistic goal,” he said.

“It’s a lot of work, and not just menial work. It requires a great deal of medical and scientific knowledge. [A victim] may miss the fact that she’s got nodules on a high-resolution CAT Scan, and that might make the difference between a $100,000 and $50,000 reward,” said the attorney.

Birnbaum confined eligibility for the Victim Compensation Fund to people who lived, worked or studied south of Reade Street, which is one block north of Chambers Street. (The Zadroga bill sets the geographic boundary at Houston Street, which is around half a mile north of Reade Street.) At the moment, Chinatown, Little Italy and SoHo are not included but people who live near the boundary and became ill are advised to write to Birnbaum and ask that the boundary be redrawn and also to apply to the Victim Compensation Fund when the time comes.

Currently psychological illnesses are not covered unless they are associated with physical illnesses and cancer is not covered, though data is being assembled and analyzed to see if there is a statistically valid correlation between cancer incidence and W.T.C. exposure.

The final regulations will be issued in late September and the first applications will be accepted in October.

“It’s very important for those making claims that they marshal all of their medical records since 9/11 that could trace a history of the illness,” said Schwartz. “You want to the best of your ability to remember what doctors you went to, what hospitals you went to, what emergency rooms you went to and begin to make a list of that so those records can be pulled as part of this process.”

Schwartz believes that applicants will get a better settlement from the Fund if they use a lawyer. He notes, however, that, “the Special Master will encourage people probably to do it without counsel, I don’t recommend that. I don’t think it’s in the best interests of your presentation. Lawyers that are trained to do this know exactly how to prove a claim and make the presentation that’s needed. But that’s ultimately a choice that you have to make.”

As far as working with the New York Bar Association to try to set up a pro bono legal program, Schwartz said, “We talked about setting one up as well and trying to attract other lawyers. Right now there are three or four law firms that advertise heavily among police and firefighters that have thousands of people signed up but on the community side, it’s pretty small. Our present plan is to charge everyone who comes to us 10 percent of what we can collect. The money will go back into supporting our work. It’s not going into any private person’s pocket.”

John Feal, founder of the FealGood Foundation, is equally dubious about complimentary legal service for the V.C.F., particularly among victims who wish to appeal their settlements. “The intentions are noble, but even lawyers have to put food on their own table,” he said.

For injured survivors that are having trouble making ends meet, however, pro-bono assistance is music to their ears.

“Knowing that most of the people hardly have any money, they should do it for cheaper or shouldn’t charge [at all],” said retired recovery worker Chris Klein, who receives only $1,200 per month in insurance compensation for his 9/11-related injuries.

Getting free help, Kelly said, would be “extremely helpful.”

“If it’s easy enough to do it on your own, why pay the 10 percent?” said first responder Ken George, who has trouble keeping up with his expensive monthly medical co-pays. “Suppose you only walk away with five grand —  the lawyer would get $500. That’s a lot.”

The original version of this article is published here:

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