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New law could deny funding to 9/11 rescuers

Rescue workers and volunteers remove debris at the

Rescue workers and volunteers remove debris at the World Trade Center. (Sept. 13, 2001) Photo Credit: Newsday / Jiro Ose

Hundreds of rescue workers who responded to the World Trade Center attacks - many now seriously ill with cancer, heart and lung diseases - could be denied cash compensation under the new 9/11 health care law.

They agreed not to sue in the future in order to apply to the 2001 Victim Compensation Fund, officials said. Designed to get victims assistance without the delay and cost of lawsuits, the fund distributed around $1 billion to 2,680 people injured in attacks or rescue efforts.

Although the responders will get health benefits under the new law, called the Zadroga Act for the late James Zadroga, an NYPD officer, attorneys and victim advocates said they could be refused access to nearly $3 billion in funding to compensate them for illnesses and the loss of ability to work.

Kenneth Feinberg, who oversaw the 2001 compensation fund and who has offered to perform the same function under the Zadroga law, said in testimony to the House Judiciary Committee in 2009 that payments under the original fund were final. The goal, he said, was to compensate "as of the date of injury, get a total release, close out the cases and bring an end to the possibility of litigation." Feinberg declined to comment for this story.

An early version of the Zadroga bill specifically permitted workers who had tapped the 2001 fund to reapply under Zadroga. But the provision was dropped, and now the issue is a legal gray area. On Tuesday, labor leaders plan to lobby lawmakers in Washington to get access for responders who are much sicker than when they applied to the first fund.

Sen. Kirsten Gillibrand, Zadroga's prime sponsor in the Senate, said "people who have illnesses that have severely worsened since they received a small payment from the original [fund] should have access to" Zadroga. Gillibrand (D-N.Y.) and Rep. Carolyn Maloney (D-Manhattan) said they planned to work with the new fund administrator "to see what can be done to address this inequity."

"It'd be tragic if the one thing these guys did wrong was not get sick enough quick enough to qualify for what now would be compensation rightfully owed to them under Zadroga," said Michael Barasch, an attorney who represented James Zadroga and other rescue workers.

Barasch and other advocates said those compensated seven years ago - but whose conditions are now worse - number "in the hundreds." Barasch said a typical net economic loss for responders forced into retirement in their late 30s and early 40s should be "in the hundreds of thousands of dollars" each.

The legislation President Barack Obama signed Jan. 2 provides $1.5 billion over five years in health care for those harmed by toxins released in the aftermath of the terror attacks. It also reopens the compensation fund, making $2.8 billion in economic relief available to survivors and responders over the next six years.

Its passage, after years of haggling, was a cause for celebration in the 9/11 community. But the issue of compensation for those who took advantage of the 2001 fund now is one of several causing anxiety. Yet to be decided, for instance, is whether injuries, such as cancer, that victims hadn't yet developed when the first fund closed will qualify for compensation under Zadroga.

Sponsors of the bill acknowledge compromises made to get it through Congress have put responders who got earlier payouts in jeopardy. "My original bill would have specifically allowed additional compensation for those who were helped by the first [fund] and whose injuries had worsened," said Maloney, the bill's prime House sponsor. "Unfortunately, some argued that past federal compensation programs did not allow for such adjustments and did not want to set a new precedent . . . We had to eliminate this provision to win passage."

Among those affected is North Babylon resident Ken George, 47, a former New York City transportation department worker who spent 16-hour days, seven days a week at the pile in the months following the terrorist attacks.

He applied to the original fund and in 2004 received a little over $107,000. Most went to treat early symptoms of what later developed into serious illnesses, including heart and lung disease. About $17,000 was for economic loss after poor health forced him in to quit his part-time job at Home Depot.

"I remember the investigator in charge of my claim . . . She looked at me hard one day before we submitted it and asked me, 'Are you sure, Mr. George, that you will be able to keep working?' I told her, 'sure.' "

George's declining health, however, forced him to resign his DOT job in 2006 at age 42. Then, on Jan. 12, George got some disturbing news: according to legal advice provided to his former union, District Council 37, he wouldn't be eligible for compensation under Zadroga because he got a payout from the first victims' fund.

"Many of these people are now disabled and have no other recourse. But at the time, they were told: take it or leave it," said Richard Alles, national legislative director for the Uniformed Fire Officers Association, who will lobby in Washington Tuesday.

Final decisions about compensation will be up to Justice Department officials and the fund's special master as rules are drawn between now and July 8.

Complicating the issue, however, are waivers rescue workers signed when they applied to the first fund that barred them from filing any civil action in federal or state court arising from 9/11.

In testimony to the House Judiciary Committee in 2009, Feinberg said payments from the first fund were final. The goal, he said, was to compensate "as of the date of injury, get a total release, close out the cases and bring an end to the possibility of litigation." Asked if he'd left room for later payments should health conditions worsen, Feinberg responded: "No. A total release."

Barash disagrees with that stance, noting that applications only demanded the waiver of rights to sue.

Feinberg declined to comment for this story, referring questions to, Deborah Greenspan, who served as deputy of the 2001 fund. Greenspan said the Zadroga law's effect on those who received earlier payments would be "subject to the interpretation of the statutory language and the intent of Congress."

John Feal, head of the FealGood Foundation that advocates for responders sickened at Ground Zero, expressed hope that the responders at least will get a shot at compensation under Zadroga.

"Ken George doesn't want to buy a Ferrari, he wants to put food on the table," said Feal, of Nesconset. "I think when the arguments are made, people will realize the right thing to do is to have cases like Ken George's heard before the new special master."

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