Opinion

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05.20.04

Does Your Award Really Cut It?

Since the creation of the Victims Compensation Fund there have been questions surrounding the monetary amount of each award. From death to injured benefits, all have been questioned, notwithstanding the amount of time that that whole process takes.

Injured victims have faced many problems but the number one hurdle to get over has been the time that an applicant had to actually appear at a hospital to receive treatment. The VCF’s initial rules and regulations stated that this had to be within 24 hours and this was later revised to 72 hours, following pressure from Albany and the Senate.

Reports surfaced in early 2002 that people had missed this deadline because they were looking for loved ones; the fund responded that ‘any reasonable person’ would have found medical help first. You make your own mind up on that one. Or that the triage centers immediately set up after the strikes did not offer the paperwork the fund needed and so on. Either way the fund came off as unwilling to listen or bend. In some cases there had been some leeway on this; credit where credit is due;

The question is; what is an award for? In a previous ‘opinion’ I clearly stated that it’s not a get rich quick scheme. It’s a way to address the losses of 9/11, for having a monetary award for the pain and suffering that one has been through.

There are two clear applicants that that VCF operate within. For families that had lost someone on 9/11 and for injured survivors. As with everything contained in this website I shall like to concentrate on just on area; injured victims.

An award is made up of three factors. Economic losses; that is, your earned income, health benefits, 401K etc. Non-economic losses covers your pain and suffering and finally collateral offsets; payments you have received from such areas as disability insurance, social security disability, workers compensations and so on. These amounts are taken off your final award.

The fund has their way of calculating the final award; I for one, like others, would like to see know my particular award has been calculated. In the matter of economic losses this figure can be generated from tax returns. I was asked to produce details of my health plan and 401K but again not sure how this factored into the final figure.

The victims Compensation website has this to say about awards: (http://www.usdoj.gov/victimcompensation/payments_injury.html)

Because Personal Injury claims are so different and their award determination is based on a variety of individual circumstances, the Special Master cannot publish any standard methodology for the evaluation of such claims. However, the Special Master has provided general guiding principles: 

Claimants who have long-term injuries and/or disabilities should submit all certified medical records and all disability evaluations performed by private doctors or institutions to the Special Master for review and consideration. Claimants who are eligible for workers' compensation benefits should submit all documents related to that claim as well. In addition, claimants who have injuries that could be the result of different events or causes independent of the events of 9/11 may be required to submit certified medical records from examinations prior to 9/11.

It seems from the above statement that non economic awards are mostly made up of an opinion to the injury rather than a proven formula, with the discretion solely lying in the hands of the Special Master.

The two areas that I do have a problem with are the non-economic (pain and suffering) and collateral offsets.

I explained to another claimant recently that I see the award as a snapshot in time. Whatever your circumstances have been up to the point of the award have been taken into consideration and what may happen in the future is not. Well to a degree.

No one can say that in ten years time any injury may manifest itself into something greater (unless medically and unequivocally supported by medical opinion) and I don’t think that anyone in their right mind should expect that. In most cases the fund has come up with a monetary award that predicts when in the future a person will return to work; in the case of temporary or permanent partial disability.

People contact me daily about their cases and awards as they feel that the amount of money that they are offered for pain and suffering just does not cut it; and in some cases I do have to agree. What do you give for a broken leg versus a damaged spine? How can it be determined that one is greater than the other?

I count myself lucky that I am about to receive an award. Recent press reports state that 1 in 3 applications have been turned down (http://www.911injured.org/Media/News)

It’s unfortunate that I feel that the fund has not adequately compensated me for over two years of hell that right now continues. The word ‘greedy’ is not warranted here. I hear day in day out from countless people that contact me.

What is pain and suffering worth in the eyes of Kenneth Feinberg and the VCF? Certainly nothing like the millions of dollars we read about in punitive damage cases and medical malpractice suits each day and I would be surprised if anyone really did think that. These cases take years to close. Indeed the fund has been somewhat ‘quicker’ in their deliberations, although some may say it has take far longer than the 120 days from beginning to completion as they laid out in the statute; I can attest to that!

Lets make one thing clear here, the fund was created out of the NTSSSA Act of 2001, a rush law passed by Congress to protect the airline industry of this country. The airlines were given emergency cash handouts to stay operational in the unforeseen future of business following 9/11.

Expecting a fall out of law suits from victims the government stepped in and by accepting an award from the VCF stops any further claim. I have to wonder what was at the top of the Bush’s administration when they incepted this act, people or profits?

Another point in contention affects both injured and deceased. The case of collateral offsets; whether workers compensation, social security disability, life insurance. If this has received it is simply deducted from the award. Why? Because Congress says so, it was part of the law they wrote. This is not the ruling of the VCF.

It seems unfair that we pay our taxes for these types of safety nets, whether state originated or privately and they have the insult to take it away from the final award. Typically a widow(er) could end up with far less from the fund than say an injured person if their partner was prudent enough to insure their own life. Where is the justice in that?

Collateral offsets in the injured victims application can actually mean projecting when that person will return back to work and therefore projecting what the collateral offsets will be in that time frame. Typically if a person has offsets that amount to five years of payments what incentive does that person have to go back to work before the full amount is realized? None!

To conclude, the loss of income is an area that easily calculated; pain and suffering awards are too low. There have even been indications that awards in the early days of the VCF have far outweighed the same award for the same injury towards the end of the life of the fund. If that’s true then the fund has demonstrated clear bias. This should be a fund for the people, equal and fair without boundaries and restrictions.

My award is now pending to be paid I have found it to be a small step in regaining my life. Deep down I feel that it has not fully compensated my pain and suffering. Soon I will be revisiting that all over again as my condition worsens more treatment is needed.

But its over, the long struggle is finished. Time has come to finish this particular chapter of the post 9/11 story and move onto the next page.

Life is ever changing; the scars of 9/11 will always be felt. Learning to accept what has happened without forgetting is the best antidote I can recommend; go get some…its called life!  Go grab your share of it.

Dennis