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An unlikely headquarters: the WCB in Menands.

We Helped Too
By David King • PHOTOGRAPHS BY TERI CURRIE
The unseen effects of the Sept. 11 attacks on one hidebound state agency

When people think about the heroes of the World Trade Center disaster, they think of the rescue workers, the victims who organized escape routes, the firemen, the police officers and the generous passersby who stepped up to volunteer. All these brave people are memorialized in the permanent World Trade Center exhibit in the New York State Museum in downtown Albany.

In a building just a few blocks away from the museum, at 20 Park St., and in another a few exits down Route 787 at 100 Broadway in Menands, there are people whose post-Sept. 11 work has been quieter and less recognized, working one-step-removed to help those heroes who were on the scene. The workers at 20 Park St. and 100 Broadway are a group of unlikely benefactors; they are the New York State Workers’ Compensation Board.

In the wake of Sept. 11, 2001, the WCB belied the usual stigma of red-tape bureaucracy and lazy workers that is often attached to state agencies, turning their own rules and established practices upside-down to help both injured workers and volunteers. And unbeknownst to most of the public (any Workers’ Comp employee can tell you the stigma is still intact), many of the changes have been made permanent. The 9/11 disaster tested the New York State Workers’ Compensation Board, and a new, more sensitive agency has emerged.

The WCB was originally forged from what some consider the second greatest workplace disaster in New York’s history. On March 25, 1911, eight blocks south of Union Square in Manhattan, the Triangle Shirtwaist Factory caught fire. Since the building’s doors had all been locked to keep the women workers inside from escaping, 146 workers died from the fire, many jumping in desperation from the windows. Most of them were Jewish and Italian teenage girls. The public backlash from the fire led to an outcry from the working class for government responsibility. Along with inspiring the passage of dozens of workplace safety regulations, the fire (and the pitiful compensation the families received) also led to the passing of the Worker’s Compensation Law of 1914. That law gave birth to the WCB.

New York law now stipulates that almost every employer has to carry workers’ compensation insurance policies that are approved by the state. If people are injured in the course of employment or acquire an occupation-related illness, they notify their employer, who files a claim with its insurance carrier. The WCB is also alerted. The board’s roles include identifying the proper carrier, making sure the insurance companies follow through, and adjudicating disputed claims. If an employer is not insured, the board pays the claimant directly, levies penalties against the negligent employer, and attempts to get reimbursement from the employer.

It’s a complicated process, and the WCB has long been notorious among workers and workers’ advocates for being difficult to work with and full of red tape, frequently demanding standards of proof that are out of reach for many injured workers.

That was certainly the experience of Walter Clickman, a 56-year-old Greenville farmer who worked full time at night for a grocery store, stripping and waxing the floors. After 12 years working with the abrasive chemicals, Clickman found it extremely difficult to breathe and was frequently coming down with pneumonia. Everything became harder to do because he was out of breath all the time. He was diagnosed with chronic obstructive pulmonary disease.

Walter filed a claim for workers’ compensation, but his employer insisted that there was no proof his disease was caused by the chemicals he used for so many years to clean their floors. The WCB agreed, and Walter was left trying to hold down a job without being able to take a full breath.

John, a 45-year-old Schenectady resident, had been driving for a local courier company for only two months when he was involved in a serious accident. After a long recovery, John was unable to hold a job due to uncontrollable seizures. John assumed because of the severity of his accident and the medical problems that followed that he would be eligible for workers’ compensation. Instead he found that due to the length and type of his employment, he was not eligible.

In the past, injured employees such as John have often found themselves out of luck with Workers’ Comp for a number of reasons, including being considered contractors rather than employees or doing what is termed “casual work,” such as handyman-type jobs or babysitting. Most of the time, however, claims are denied based on employers’ disputing workers’ accounts. If evidence that a worker’s injury or illness arose from the workplace can be disputed, the worker is generally left to fend for themselves.

Then came Sept. 11, 2001. In the hours immediately following the attacks it was hard for anyone to imagine the effect that those events would have on their daily lives over the next months and years. From the pizza boy to the Wall Street financial big-shots, everyone was uncertain of the future—but not Mark Solomon, the senior Workers’ Compensation Board judge for the New York District. Solomon, who had a view of the towers as they fell, knew instantly that there were workers in the building and that he would be part of the process to get them compensation. “I heard the hit on the way to work and knew we were going to have it,” he commented recently.

“It was one of the biggest, if not the biggest, office places in New York City. We were all in shock,” says Edwin J. Ruff, the advocate for injured workers at the board. Ruff and the rest of the WCB heads were in a boardroom that same day trying to anticipate the size of the disaster and how they would deal with it. “We had an office on the pier open the next day,” says John Sullivan, the media-relations representative for the WCB. “I was at work the next day with my staff [and we kept at it] for 12 hours a day, seven days a week, for 12 months,” Ruff remembers.

Training was set up for judges to start dealing with the new claims. The WCB normally receives 400-500 claims for death per year; in the wake of the World Trade Center disaster they received 2,500. “We didn’t know the police and rescue workers had done such a good job,” says Sullivan. “We were initially wondering if we would have 10,000 deaths.”

Under such extraordinary circumstances it quickly became clear that some usual ways of doing things were going to have to give. “The chairman made it immediately clear to us that we needed to make the process easier on everyone,” says Ruff. So they did. The first step was to do away with requiring proof of death and a death certificate. An affidavit system was introduced that rested on the word of family members that they had lost a loved one. The affidavit system is still in effect today for all death claims, not just those involving 9/11.

This change may seem like a small concession, but it made a world of difference to those who found themselves without any proof that their family member was dead. For many who lost family in the attacks, there was no body, and therefore no way to get a death certificate. It also allowed WCB workers to extend a hand of trust to the people they were trying to help. Rather than coming off as robotic, insensitive data collectors, WCB staff were able to acknowledge how much the people they were dealing with had gone through. Staff who had before felt like they were part of an uncaring, inflexible bureaucracy were now in a position that felt just a little more human. As one worker put it, “It was easier to do our jobs because we made it easier on them.”

It also had been WCB policy to require a hearing for every death case. That rule was quickly revoked in the wake of 9/11. They also got Gov. Pataki to issue an executive order doing away with the requirement for injured workers to notify their employers within 30 days of an injury. “In a lot of cases the employers no longer existed,” Sullivan points out.

One of the most important moves the board made next was to approach insurance companies to let them know they were expected to pay the Trade Center claims very quickly. “We told insurance companies to start paying and we would worry about the problems later,” Ruff explained. According to Ruff, the companies responded favorably and a good many of them used the “payment without prejudice” option that allowed them to start paying victims immediately without accepting liability. The WCB also took steps to encourage any lawyer who was involved in a WTC claim to work pro bono.

Another move the board took was to begin educating union reps on how to walk their workers through the claims process. “We wanted to make sure people know what to do from the moment of injury to the date of a hearing,” said Ruff. The board immediately set up meetings with unions to find out their needs.

They also reached out to undocumented immigrants. (The WCB works with people regardless of immigration status.) The Windows on the World restaurant at the top of Tower 1 employed many non-English-speaking and undocumented people. “We got a list of people and made sure we had people to communicate with them,” said Ruff. WCB employees from around the state volunteered to work as translators.

All of these changes would have made little to no dent in the speed or amount of claims being processed by the board if the WCB had not begun modernizing and updating its communications systems in 1997 to allow cases to be handled and information to be accessed all around the state, with files accessible in minutes rather than hours. Cases were handled from New York City to Menands to Buffalo, with every office pitching in.

Let’s make this happen: a WCB employee prepares for a hearing.

Claimants who had dealings with the WCB before 1997 (when everything was stored in paper files) will tell you the experience was agonizing and slow. A great number of agencies around the country have yet to update their systems. If New York’s board had been one of them, the results could have been disastrous. “We have resolved 90 percent of the death claims at this time,” says Sullivan. “If we were working on our old, out-of-date system, we would still be working on the first third of the claims.”

Some victims of the WTC attack needed help from WCB right away. However, money was the last thing on other victims’ minds. In anticipation of the two-year deadline for filing claims, the board launched an outreach campaign to make sure anyone eligible to file a claim did so. The outreach paid off, and there was a flood of claims, which the WCB has just about finished processing.

“We had 10,000 unexpected claims with a national spotlight on us and a huge emotional factor that affected our employees and those we were trying to help,” Sullivan emphasizes. “Everyone in our offices all around the state was anxious to do what they could to help.” The WCB had a sharp increase in cases that were settled without hearings, which reduced the stress on workers and claimants.

The changes affected the board workers’ experience of their jobs as well. While WCB workers are accustomed to dealing with people who have recently been through devastating events, the torrent of claims that followed 9/11 were more than the norm. Just as everyone around the country did, they felt a sense of urgency and commitment to somehow help the victims of 9/11. By becoming more flexible, rather than forcing people through the grinder of bureaucracy, WCB workers were able to see themselves as legitimate assistants to those who really needed help. Workers say their jobs at the WCB and the changes made there allowed them to feel a unique sense of satisfaction. While friends and relatives wanted to know what they could to do make a difference for the victims of 9/11, members of the board were immediately able to help, albeit in a small way.

Despite how out-of-the- ordinary the Sept. 11 workers’ compensation claims were, the system could be adjusted and played with to accommodate the number and type of the claims. But people who worked in the towers or for the fire and police departments weren’t the only ones injured in the attacks. There were also all the volunteers.

The volunteers were not injured “in the course of or arising from their employment.” In fact, some were not employed at all. There was no employer backing them up with insurance benefits. No one had been paying for their safety.

Although the WCB had never dealt with volunteers before, many of the claims workers became quite familiar with the stories of the volunteers’ heroics from their interaction with the victims, and the board felt obligated to try to assist the heroic volunteers who weren’t technically employed by anyone. So the WCB applied for a grant from the Federal Department of Labor, received $25 million to use toward compensating the volunteers, and established a set of guidelines to make sure an applicant was truly a volunteer. The guidelines stipulated that a volunteer had to have been directed by an agency such as the Red Cross or other service and have been working within a radius around the WTC site or the Staten Island landfill. “We have been quite liberal with our required proof,” says Sullivan. “We’d rather be on the side of giving benefits.”

They were determined to alert anyone who deserved the benefits to their eligibility. The WCB sent out packets to every known volunteer and made calls to let them know what kind of proof they would need. Out of the $25-million grant, $1 million has been spent to date. There are 588 registered volunteers. Eighty-seven volunteer claimants have been paid, but the vast majority have not pursued benefits. “Very few claimants are pursuing wage replacement,” says Ruff. “They are more concerned with the long-term effects on their health.” Those who have registered have done so in anticipation of WTC-related illness.

With this grant, the WCB and all of its employees find themselves in a position they’ve never been in before. Rather than being able to determine whether an insurance company should pay workers, they are now in charge of grant money that will be used to take care of WTC volunteers for years to come. In this matter, the board cannot push someone else to pay; the part they play in the WTC volunteer matter is that of screener. It’s up to the board now to decide the severity of the injury and eligibility for compensation. They must consider that the money they are giving out for volunteers is coming from a limited fund that may need to stretch through what appears to be almost certain impending long-term illnesses. Board workers may eventually find themselves having to determine which volunteer is in a more deserving or desperate situation. Workers at the board are well aware of this fact and it is a weight that rests on their shoulders. Never before have the workers of the WCB been so directly responsible for the people they are helping and it is not something they can forget.

Captain Scott Shields is one of those volunteers. On the morning of the 11th, he and his rescue dog, Bear, traveled from Connecticut to help out at the scene of the disaster. Bear was the first dog inside the rubble. He played an integral part in the rescue efforts and is credited with finding the most victims, including FDNY Chief Peter Ganci and FDNY Commissioner Thomas Feehan. Like many other volunteers, Shields and Bear were injured during their more than 18 hours in the rubble. Shield’s legs were damaged severely, but he was alive. “I had two fractured ankles and a knee. I can’t walk anymore,” says Shields.

But what really concerns him is the fate of his rescue dog, Bear, whose injuries from the WTC site rapidly became cancerous. Within a year Bear was dead. “Animals react quicker to stuff like that than we do,” says Shields. “It’s like canaries in the mine. The building was cooled by freon; there were tons of burning plastics. It’s like Agent Orange.” The effect of the toxins released on the day of the disaster is a strong concern for all those who survived that day at ground zero.

So far the availability of the WCB fund has only proved a partial comfort to volunteers who are worried about impending long-term health effects. “The people at the WCB have done all they can. Some of them in particular have been real angels, but most people are not worried about the rescuers, and we are all sick,” claims Shields. “Rescue workers will willingly give their lives for anyone on any day and their backs aren’t being watched.”

Shields points to what he calls the Environmental Protection Agency’s deliberate distortion in reporting the level of carcinogens in the air in the city and around ground zero. “The city is 100 times over the limit of carcinogens and the EPA is lying through their teeth,” Shields asserts. “They are more concerned about real estate than people’s health.” He also feels that more money is being spent on researching the effects of the air at ground zero than actually helping victims and providing health care. He points to the $93 million that has been granted to Mount Sinai, a major teaching and research hospital in Manhattan, and wonders why more is not being given for day-to-day health care for the victims.

However, the studies done at Mount Sinai have actually confirmed Shields and other volunteers’ fears. A study that included 1,138 responders revealed that nearly three-quarters of them experienced new or worsened upper respiratory problems, and half of them had upper and lower respiratory symptoms eight months after the World Trade Center attack. They were all also found to have suffered extreme psychological effects.

Sullivan says the board feels that its $24 million in unspent volunteer grant dollars are insurance for the future, when more volunteer health issues may arise. The two-year deadline for filing after an accident has been waived for volunteers. “We will be ready for them,” says Sullivan. “We worked with Mount Sinai clinics. A lot of money is going to screening, and it’s going to continue because there is more cost there.” But the weight of actually paying for treatment down the road may rest on the WCB’s shoulders.

After pushing so hard to smooth the way for payments to workers and volunteers, is the board seeing any need to put the red tape back in place? There were a few high-profile cases of people making fraudulent applications to the Sept. 11 Fund and other charities in the months after the attacks, but Sullivan says they’ve had no indication of people taking advantage of their newfound generosity. “We did push the insurance companies to pay and it’s our responsibility to make sure the integrity is pure, but I don’t believe there was anything close to an epidemic of fraud,” he states confidently.

The WCB is still a bureaucracy. That will never change. But the events of 9/11 have forced the board to look at the way it deals with people. There is a dark cloud on the horizon for the WCB as they will be responsible for the 9/11 volunteers whose health is already wavering. Good or bad, the spotlight will be shining bright on them to see how they take care of the heroes of our nation’s most devastating terrorist attack.

 

“I was at work the next day with my staff [and we kept at it] for 12 hours a day, seven days a week, for 12 months,” Ruff remembers.

 

“Very few claimants are pursuing wage replacement,” says Ruff. “They are more concerned with the long-term effects on their health.” Those who have registered have done so in anticipation of WTC-related illness.


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