The September 11th Victim Compensation Fund (VCF) and the WTC Health Program cover many cancers that individuals have developed from being exposed to WTC toxins. Despite the passage of 16 years, many people are only now discovering the full health effects of their exposure. In order to recover benefits under VCF for cancer, claimants must register in a timely fashion. However, calculating the applicable registration deadline is not always easy. There are many possible pitfalls or misunderstandings that can cause someone to miss the VCF registration deadline for cancers. In order to aid claimants, VCF has published hypothetical examples illustrating how the rules for determining the registration deadline would be applied in various scenarios. The examples below are taken from VCF’s official website at vcf.gov.
VCF’s Scenario 1:
The claimant is being treated by the WTC Health Program. He has uploaded to his claim his original certification letter, dated November 2013, which indicates that his WTC-related aerodigestive conditions were certified for treatment in July 2011. The claimant registered with the VCF in October 2015. Is this registration timely?
Yes. The VCF’s general policy is to look at the date of the certification letter (November 2013), and not the date the certification was effective (July 2011). The letter date provides a clear date as to when the claimant knew that certain conditions had been certified as 9/11-related. Because the letter was dated November 2013, this claimant had two years from that date (until November 2015) to register with the VCF, so the October 2015 registration is considered timely.
VCF’s Scenario 2:
The claimant is being treated by the WTC Health Program. She has uploaded to her claim the original certification letter, dated November 2013, which indicates that her WTC-related aerodigestive conditions were certified for treatment in July 2011. In July 2016, the claimant was newly certified with cancer in a certification letter dated July 2016, which was also uploaded to the claim. The claimant registered with the VCF in October 2016. Is this registration timely?
Yes. Under the new policy, while the claimant’s registration would have been untimely for her original aerodigestive conditions because she first registered in 2016, which is more than two years after the date of her original certification letter, the new certification for cancer triggers the start of a new two-year registration period. In addition, per VCF policy, if registration is timely for any one condition or injury, all eligible conditions – regardless of when they were determined to be 9/11-related – may be considered for an award, subject to the other requirements of the VCF claims process.
VCF’s Scenario 3:
The claimant has been treated by the WTC Health Program for aerodigestive conditions for many years. He did not recall receiving a certification letter from the WTC Health Program and asked the WTC Health Program to send him a copy of his certification letter. The copy of the certification letter from the WTC Health Program is dated July 2016. The claimant registered with the VCF in July 2016. Is this registration timely?
No. Based on the information presented, the registration for this claim is not timely. As described above, the VCF’s general policy is to look at the date of the certification letter, and not the date the certification was effective or the date the claimant received the letter. In this situation, however, the date of the letter is not the date on which timely registration can be based because the claimant was being treated at the WTC Health Program for many years and therefore would have had clear knowledge that the conditions being treated were related to his 9/11 exposure. The date on the copy of the letter is not the original date the WTC Health Program certified the conditions for treatment or the original date on which the WTC Health Program so notified the claimant, but is simply the date the requested copy was mailed to the claimant. This claim would be denied as the claimant did not meet the applicable registration deadline. If the claimant believes there are some circumstances that might merit a reconsideration by the Special Master, he could appeal the decision and explain the circumstances at a hearing. The claimant could also amend his claim in the future if he has additional 9/11-related conditions or injuries that are newly certified by the WTC Health Program or newly determined by a government entity to be 9/11-related.
VCF’s Scenario 4:
The deceased victim was a law firm employee working in the VCF’s NYC Exposure Zone. The victim was diagnosed with a covered cancer in 2009 and died in 2011 of the cancer, as confirmed by the autopsy results. The victim did not enroll in the WTC Health Program while she was alive and did not register a personal injury claim with the VCF. The executor of the estate, as well as the family, had no indication the victim’s cause of death was related to 9/11 and did not know about the VCF or the WTC Health Program.
Recently, the executor learned of the VCF and the WTC Health Program for the first time and about the possibility of filing a deceased claim. If the executor files a deceased claim and the victim’s cancer is verified through the VCF’s Private Physician process, is the deceased claim timely registered?
No, the registration for the deceased’s claim is untimely. The registration deadline would have been October 14, 2014, as explained in the Registration and Claim Filing Deadlines chart for deceased claims. The Personal Representative retains the right to appeal the determination and, in limited cases, if the circumstances presented are compelling, the Special Master may consider a waiver of the deadline. The Personal Representative in this case, however, may still file a timely personal injury claim for losses incurred by the victim up to the date of death if her cancer is verified as WTC-related through the Private Physician process.
VCF’s Scenario 5:
The deceased victim died in 2015 of a condition that was not related in any way to 9/11 exposure. The victim suffered, however, from a covered cancer that was diagnosed in 2009, but he never registered with the VCF or the WTC Health Program. In October 2010, the New York City Employees Retirement System (NYCERS) determined that his cancer was 9/11-related. How should the Personal Representative proceed? Should she file a deceased claim or a personal injury claim?
Because the victim did not die as a result of a 9/11-related condition, the Personal Representative cannot file a deceased claim. As noted above, a Personal Representative can only file a deceased claim if the cause of death was a 9/11-related condition.
The Personal Representative also cannot file a personal injury claim on behalf of the deceased victim. In order for a personal injury claim to have been timely registered, it must have been registered within two years from the date that a government entity determined that the condition was 9/11 related. In this case, the victim did not register his claim by October 2014, which is the applicable deadline. A personal representative cannot properly register a Personal Injury claim that would have been untimely if filed by the victim.
These examples are taken directly from the VCF’s website. However, they don’t take into account every scenario. Each case is different. Even small differences in facts can result in completely different consequences. Individuals should consult an experienced attorney in order to get information and advice that is specific to their circumstances.
Please contact Sullivan Papain Block McGrath Coffinas & Cannavo PC to speak to a VCF Unit attorney about your rights to file a VCF claim for cancer and other serious injuries.