As reported in the Wall Street Journal  and Daily News  today, new Zadroga Act 9/11 Victim Compensation Fund Special Master Sheila Birnbaum has released updated draft regulations regarding Zadroga claims procedures.  The rules are subject to a 45 day comment period and can be changed depending on those comments. We will be studying the new proposed rules closely for any possible comments we may make regarding inclusion of certain cancers under the Zadroga 9/11 Act.

As we expected, the new rules limit compensation to those claims involving “physical harm”. Claimants who have only psychological injuries will not be able to claim compensation from the 9/11 Victim Compensation Fund, although they are entitled to medical care. Claimant’s with a combination of both physical and mental injuries will be able to claim compensation under the Act for the physical part of their injuries.

The new rules significantly expand the geographic boundaries for 9/11 VCF claimants who were injured to include all portions of Lower Manhattan south of the Brooklyn Bridge, Centre Street and Reade Street.  

The Special Master at this time is proposing to use the presumptive list of WTC related illnesses established by the World Trade Center Health Progam as the list that the Victim Compensation Fund will adhere to, except under rare extraordinary circumstances.  Therefore, the decisions of Dr. John Howard , Director of the World Trade Center Health Program, on which illnesses will be covered, including certain cancers, will guide the Special Master.

In a significant surprise, the new rules permit the “amendment” of prior Victim Compensation Fund claims made under the original Fund, which closed in December 2003. For example, a claimant who received compensation under the original Fund for “asthma”, but who since has since developed a new 9/11 related condition such as “interstitial lung disease”, can  now “amend” his old claim for additional compensation. Similarly, if the prior Victim Compensation Fund compensation recipient’s condition has “substantially worsened”, that claimant can now apply for additional compensation. Therefore, all claimants who collected for injuries from the prior VCF should consult a Zadroga Act attorney today to see if they are eligible for additional compensation. 

Finally, the Zadroga 9/11 Act  permits the Special Master to distribute only $875 million of the newly allocated $2.75 billion to the Fund in the first five years, leaving the remaining amount to be paid in the program’s 6th year. The Special Master will have to “pro-rate” or reduce the initial awards, which may upset some claimants. The bottom line is that all claimant’s will receive their full award, but it will likely be in two parts years apart.

We will continue to study the new Zadroga Act regulations and post our analysis here. Stay tuned.