N001172
To: Sept. 11 Victims Compensation Fund, US DOJ, Washington, D.C.
Sent By Fax to (301) 519-5956
Dated: December 26, 2001
RE: Corrments on the Proposed Regs. on the Definition of Physical Harm in Section 104.2
I would like to pose a question on a particular part of the above proposed regs, suggest a
proposed answer to that question and suggest proposed modifications and thoughts on what
should
be in the final regs for the definition of "Physical Harm" Section 104.2. I am specifically
referring to
the requirement that a claimant must have sought medical help within 24 hours of the incident.
Query-Does that 24 hours requirement operate as an absolute bar to recovery, does it
serve
as a presumption or to move or burden of proof or is it intended as something else? I would
suggest
that it definitely not serve as an absolute bar to recovery but, preferably, serve as a so-called
positive
presumption, i.e., if an otherwise qualifed claimant sought medical help with 24 hours, causation
is
presumed and not an issue. Moreover, the first 72 hours or so after Sept. 11th were quite chaotic
particularly in all of the directly affected locales. All the hospitals here were geared up for
emergency
aid for what turned out to be a small number of survivors and everyone else was strongly
discouraged
from going to any emergency facilities.
Even in the best of times, it is quite difficult to get to see a physician on very short notice,
i.e.,
on what would have been not much later than between 10:00 and 11:00 A.M. on the next day,
Sept.
12th. I cannot conceive that you intend to permanently bar claimants (many of whom did not
make
it home until quite late on Sept. 11th) who did not seek medical help until the afternoon on Sept.
12th
or, perhaps, until say 11:30 A.M. that morning. Given that an absolute 24 hours time
requirement
would hardly serve the interests of justice, one should ask what time standards, if any, should be
used?
Let me suggest that there be no absolute time bar at all. Moreover, given the
circumstances
on the ground at the time, one should use a 72 or perhaps 48 time frame and use it as positive
presumption in the manner that that term is used above. Every claimant should have an
opportunity
to prove direct and proximate causation beyond a reasonable cause. Of course, the greater the
time
lag between injury and treatment, the harder that will be to prove and the time issue will continue
to
be quite relevant. However, you should not create any bright line narrow time test, as that will
certainly deny justice to those who could not or would not, for whatever reason, seek medical
assistance in compliance with that narrow time requirement. In the aftermath of Sept. 11, many
people were immoblilized and not functioning well or at all for days. Why penalize them now?
Note that I am sending this fax because I could not get onto you comment website last night.
Please regular mail (I have no faith in your e-mail) a full copy of both the proposed and final regs
when they become available and two sets of any and all eligibility and application forms and
publications. Thank you and good luck on this endeavor.
Individual Comment