Defending WTC “Rescue, recovery, and clean-up”Claims Under Article 8-A

Although seventeen years have elapsed since the tragic events of September 11, 2001, New York Workers’ Compensation claimants continue to bring claims for latent conditions they allege are related to the World Trade Center attack (generally referred to as “Article 8-A claims”, based on the governing statute). Any claimant suffering from a qualifying latent condition is eligible to bring an Article 8-A claim if they participated in “rescue, recovery and clean-up operations” at the World Trade Center site (and other related sites listed in the statute) between September 11, 2001, and September 12, 2002. While these claims are often emotionally compelling, the claimants often do not have grounds to bring the claims under 8-A. Here’s how to defend these claims.

Background

World Trade Center claims under Article 8-A typically cases involve claimants who worked for multiple employers at Ground Zero in the wake of the attacks. Claimant’s counsel takes a shotgun approach: generally bringing claims against any and all employers identified. In such cases, before the court will address issues such as causal relationship of the latent condition, the question of the proper employer (and by extension, the proper carrier) is first addressed.

In many cases, a claimant’s work for one or more employers will fall into the category of rescue, recovery, and clean-up, while the work for other employers may not. This is important in cases where a particular carrier’s insured appears to be last in line (usually based on the claimant’s union records and testimony). If it can be shown that the claimant’s work for a given employer did not qualify as rescue, recovery, or clean-up – even if the claimant worked for the employer at Ground Zero during the relevant 8-A period – that work will not be deemed “covered participation” and jurisdiction under Article 8-A will not be established.

To illustrate this point, take the hypothetical of a claimant who worked in the construction field in the aftermath of the attacks. The claimant testifies that he actively rescued injured and trapped victims and removed debris from damaged buildings. The claimant then testifies that he continued to work in the Ground Zero area for multiple employers, for many months thereafter, but that in the last month of the 8-A period his job was erecting drywall for a new office building. Clearly, such work is not the rescue of victims, or disaster cleanup – but is it “recovery” in the 8-A context?

What the Law Requires.

The Board has found that the term “recovery” in Article 8-A refers specifically to the recovery of human remains:
“The Board, when it has directly considered the meaning of the term ‘recovery’ as used Article 8-A, has concluded that that term refers to recovery of human remains (Matter of Merrill Lynch & Co., 2009 NY Wrk Comp 00738167; see also Matter of Tully Construction, 2008 NY Wrk Comp 00645554). This reading is consistent with the generally accepted meaning of the term ‘recovery,’ as it is used in the context of the daunting efforts put forth by thousands of workers and volunteers in the aftermath of the attacks on the World Trade Center, where the focus was initially on the rescue of those who were injured or put in harms way by the attacks, and later shifted to the respectful recovery of human remains and clean-up of the area.” See 2010 NY Wrk. Comp. LEXIS 4961 (N.Y. Workers’ Comp. Bd. June 04, 2010).

This construction was affirmed by the Appellate Division (in a separate case), which noted that “the term did not encompass…economic recovery efforts…” See Matter of Williams v. City of New York, 89 A.D.3d 1182.

Practical Take-Away.

Given the foregoing, it is clear that the hypothetical worker described above was not engaged in “recovery” work in his last employment at Ground Zero during the 8-A period. In such a case, the WCLJ will seek the last instance that the claimant did perform rescue, recovery or clean-up work within the statutorily defined area during the statutorily defined period, in order to determine his last “covered participation.”

The thorough and proper defense of an Article 8-A claim begins with a challenge to the grounds for the claim and a vigorous position taken that the claimant must demonstrate that the alleged employment activity qualifies as rescue, recovery or clean up and not merely the normal everyday business of the employer.

Tim Kane is a Senior Associate attorney at Lois LLC where he defends employers and carriers in New York workers’ compensation claims. Tim can be reached directly at tkane@loisllc.com or 201-880-7213.