source: Insurance Journal June 20, 2010
Thousands of 9/11 rescue and recovery workers suing New York City over their exposure to clouds of pulverized glass and cement at the World Trade Center site have to decide whether they have more faith in their lawyers or Congress.
Some workers offered a share of a new settlement worth up to $713 million Thursday might be tempted to hold out for a potentially more lucrative option — a federal bill that could pay billions to people who die or become disabled because of illnesses caused by trade center ash.
The legislation has been stalled for years. But the choice could prove difficult for former police officer Glen Klein, one of more than 10,000 cops, firefighters and construction workers with pending lawsuits.
“It is incredibly unfair to put people in this position,” said Klein, who developed asthma and other health problems after working long hours in the rubble. “It’s amazing, really, that it’s even come to this, almost a decade after 9/11.”
Lawyers who crafted the legal pact and the judge who approved it Thursday exhorted responders not to reject the settlement because of something Congress might or might not do.
“There is no better deal. This is the deal on the table,” said U.S. District Judge Alvin Hellerstein. “People can think, maybe Congress will do something. It’s possible. But the old saw applies: The bird in the hand is better than two in the bush.”
The two efforts to compensate sick ground zero workers are on a collision course because of a rule intended to prevent double dipping _ getting paid twice by the government for the same injury.
Congress is poised to consider legislation this summer that would reopen the 9/11 victim compensation fund and pay up to $8.2 billion to people whose health has been ruined by environmental damage caused by the attacks.
The bill, however, contains a tough restriction: It bars anyone from receiving a payment if they previously successfully had sued the city over their health.
Several lawyers involved in the case called on lawmakers to eliminate the potential conflict by changing the bill.
Marc Bern, a senior partner in the law firm representing most plaintiffs, said lawmakers could simply reduce any federal award by whatever amount a responder already had received in the settlement.
“Don’t make the first responders gamble with a choice that is not a choice,” said Nicholas Papain, whose firm represents about 640 firefighters. “I ask them to fix it, now that this settlement is real.”
Rep. Carolyn Maloney, a leading sponsor of the bill, said Congress will not support a measure that allows responders to participate in both programs. Maloney, D-N.Y., said the changes suggested by the lawyers “would put the bill in serious jeopardy.”
“Regretfully, it would be unprecedented to allow those who settle a case to go back and seek additional compensation for the same case,” she said in an e-mail to The Associated Press. “Those deciding whether or not to agree to the revised settlement announced today should do so on the merits of the settlement itself and not on the promise of change to the legislation.”
The bill’s supporters hope to have a decision in Congress by the anniversary of the Sept. 11, 2001, attacks, she added, which would give responders just enough time to decide which program was best for them.
The deadline to join the settlement is Sept. 30.
After years of inaction, a key House committee signed off on the measure last month, clearing the way for it to move to the House floor. But its success remains in doubt, in part because of its enormous cost. The proposal has yet to budge in the Senate.
The legal settlement faces a big hurdle, too. For it to take effect, 95 percent of the responders must opt in. If fewer than that say yes, the deal dies.
Kenneth Feinberg, the former special master of the federal 9/11 victim compensation fund, has urged Congress for years to reopen the program to cover people with new health ailments, but on Thursday he was among those urging people to accept the settlement now.
“What is the alternative? To wait? You’re waiting for Godot. You’ve waited enough,” he said.
Under the legal deal, individual payments are to be based on the severity of each person’s illness, and the likelihood that it might have been cased by trade center dust.
Payments would range from a minimum of $3,250, for people who aren’t sick but worry they could fall ill in the future, to as much as $1.5 million to people who have died. Nonsmokers disabled by severe asthma might get between $800,000 and $1 million.
Feinberg has been appointed to hear appeals of any awards responders believe are too low.
It is unclear whether the federal program would offer more. It contains far more money for claims but could also cover thousands more people who never joined the lawsuits.
The House bill would also authorize up to $5.1 billion to cover the future medical treatment of 9/11 responders. That part of the legislation would be open to all, regardless of whether they participate in the legal settlement.