N002388
January 16, 2002
Kenneth L. Zwick, Director
Office of Management Programs
Civil Division
U.S. Department of Justice
Main Building, Room 3140
950 Pennsylvania Avenue, NW
Washington, DC 20350
Re: Comments on September 11th Victim
Compensation Fund of 2001
Dear Mr. Zwick:
Our firm represents members of the Patrolmen's Benevolent Association of the City of
New
York. Since September 11th our firm has had extensive contact with family members of New
York
City Police Officers lost in the line of duty on September 11th. We have also had extensive
contact
with Police Officers injured on September 11th and Police Officers who suffered injury after September 11th.
The Following comments on the Interim Final Rules are submitted by this law firm based
upon conversations with injured police officers and family members of deceased police officers.
We also pose questions with respect to the limit on civil action and the extent of the waiver a claimant will be required to execute.
Comments:
Pension Funds and Life Insurance Benefits as a "Collateral Source"
1. We urge the Special Master to amend the Interim Final Rules and eliminate both
pension funds and life insurance benefits from the definition of "collateral source" The inclusion
of these benefits has a particularly harsh affect upon the families of New York City Police
Officers
who died in the line of duty on September 11th. While the all overall goal of the Fund is to treat
all citizens equally, the Rules ignore the fact that members of the uniform service held
dangerous
and hazardous jobs before September 11th. New York State law recognized this fact by
providing a full pension to be paid to the survivors of police officers killed in the line of duty.
Furthermore, a "pension is not a death benefit per se but is a benefit for the enjoyment of life after one has completed his or her working life. Members of the pension system did not enter
into it with the expectation of the funds being paid out to their survivors but to be paid to them as an additional source of income upon their retirement. The Interim Final Rules, by treating pension
funds as a "collateral source" and therefore as a death benefit, defeats the primary purpose of a pension as being a retirement benefit.
Additionally, due to the dangerous and hairdo duties of a police officer's work, their life insurance coverage would be higher than most civilian workers. Police officers through their union have traditionally carried a higher amount of life insurance coverage than their fellow citizens.
The Final Rules must give recognition to the different positions by police officers and
other members of the uniformed services who perished while saving the lives of thousands of
their fellow citizens. Therefore, we recommend that both pension funds and life insurance benefits be removed from the "collateral sources" definition.
Set-Off of Awards from Public Safety Officers Benefit Program
2. The following language is used in the Supplementary Information sections as part
of the statement of the Special Master, concerning Noneconomic losses:
The regulations therefore set a presumed award for
noneconomic losses sustained. For those victims who
died as a result of the September 11th aircraft crashed,
the presumed noneconomic losses will be $250,000,
plus and additional $50,000 for the spouse and each
dependent of the deceased victim. That $250,000 figure
is roughly equivalent to the amounts received under existing
federal programs by public safety officers who are killed
while on duty, or members of our military who are killed in
the line of duty while serving our nation See 38 U.S.C.
1967(military personnel); 42 U.S.C. 3796
(Public Safety Officers Benefit Program). The latter
figures -- $50,000 for the spouse and each
dependent-- include a noneconomic component of
"replacement services loss."
The direct inclusion in the Interim Final Rules of the Public Safety Officer Benefit Program,
42 U.S.C. 3796 gives us cause for pause. A reading of the Special Masters statement coupled
with
the actual Interim Final Rules indicates that the amounts of awards received from the program by
survivors of police officers killed in the line of duty or injured would be set-off because they would have received an award under this federal benefits' fund.
The Final Rules must include language which specifically exempts any type of set-off
concerning police officers and other public safety officers who would have received an award
under
the Public Safety Officers Benefit Program. If the Fund rules remain silent, an interpretation of the
rules would tend to further the belief that police officers and other members of the uniformed service are being penalized because of the dangerous and hazardous nature of their job and they and the
surviving families are being treated unfairly. Furthermore, 104.47 definition of collateral sources includes "death benefit programs" surviving family members and injured police officers will be treated unfairly under the Final Rules of the Fund.
Limitations on Civil Actions:
3. Concerning 104.61 Limitations on Civil Actions, we recommend that the date of
March 21, 2002 be changed to at least December 21, 2002. Requiring the withdrawal of any
pending civil action prior to the Fund making even one award or determination does not give
either
the claimant or attorneys a chance to evaluate the effectiveness of the Fund as an alternative to the
courts. By extending the date to December 21, 2002 you would allow close to seven months of
information to be absorbed by all concerned and allow for an informed decision as to whether or not a claim should be made to the Fund.
Proof of Physical Harm
4. The request concerning treatment by a medical professional within 24 hours is far
too
restrictive and does not take into account the impact the attacks had upon the victims and society as a whole. Some injuries would not have manifested themselves within the required period of time.
This requirement also fails to take into account a victim's need to reunite with her or his family or
the fact that many victims have ignored or minimized their real injuries in light of the horrendous events they had witnessed.
Regarding police officers and other uniformed service workers the proof of physical harm
requirement should be satisfied by submission of medical records and/or a designation of a Line of Duty injury from the respective departments. The period of time concerning the injury should be also extended from 96 hours to at least 168 hours. The search and rescue efforts at the World Trade
Center during the week following the attacks never diminished. The hope of finding victims
alive was never lost until weeks after the attack.
Question and Comment:
5. With regard to the issue of waiver of civil actions we raise the following issues which
must be answered: Our firm has filed a number of "Notices of Claim" concerning the City of
New York's failure to provide proper equipment to New York City police officers assigned to the World
Trade Center area and other locations, including the Fresh Kills Landfill. Some of these officers have experienced physical injury(mainly pulmonary) as a result of New York City's negligence.
Some of these same officers were also injured during the rescue and recovery efforts as the
World Trade Center and may be eligible to make a claim to the Fund. Additionally, the police officers who
were injured on September 11th may have also been exposed to toxins and other carcinogenic
substances which may not reveal themselves as a health concern for many years to come.
Our question is: If a police officer makes a claim to the Fund for physical injury suffered on
September 11th (i.e.: broken arm, hand or foot) and subsequently finds our years later to have developed lung cancer, will he or she have waived his/her rights to bring a civil action against to the City of New York, Port Authority or a private plaintiff concerning their exposure to these toxins and carcinogenic substances or agents.
Our comment and suggestion is that any waiver or realease executed by a claimant
receiving an award from the Fund should be limited to waive their right to a law suit for the particular injuries known at the time they execute the waiver. This would preserve any future claims concerning their exposure to toxins and carcinogens which could prove to give rise to serious health risk 10 to 20 years from now.
Conclusion:
We submit these comments and questions in an effort to assist the Special Master in
formulating the Final Rules for the distribution of awards from the Fund. While these comments
are limited to specific and technical areas, we would urge the Special Master to talk with some of
the actual potential claimants prior to establishing the Final Rules. Our firm is ready and willing
to reach out and provide the Special Master with first hand experiences concerning injured
members of the New York City Police Department. Please do not hesitate to contact us hsould you wish to take us up on this offer.
Very truly yours,
Comment By:
Worth, Longworh, Bamundo & London, LLP
New York, NY