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Many Who Served on 9/11 Are Still Pressing Fight for Workers' Compensation

May 13, 2004
By ANTHONY DePALMA
New York Times

It is in places like Judge Mark Solomon's workers' compensation courtroom in Brooklyn that lingering questions about the health consequences of the Sept. 11 attack on the World Trade Center are fought over day after day.

Workers take seats at one end of the dark wood table in front of Judge Solomon, their hands jittery, their ankles crossed nervously. Flanked by lawyers, they struggle to explain how they became sick, and in some cases unable to work, because of what happened in the days and weeks after the twin towers collapsed.

There is the asbestos worker who developed asthma after working on the enormous tangle of debris that was the trade center; the city employee who takes medications for her frayed nerves because of what she saw that day; the construction worker who sees her doctor every other week because, she says, her lungs were scarred by the dust at ground zero.

And there are people like Franklin Chandler, a 54-year-old bus driver from Washington Heights, who missed 10 months of work after 9/11. He came, over weeks and months of hearings and arguments, with his medical charts and expert testimony. His employer had challenged his account of how he had come down with a respiratory ailment that made it difficult or impossible to work.

After more than two years, he was finally awarded a portion of his lost pay. But the modest medical victory left hard feelings.

"I was belittled," Mr. Chandler said. "They tried to portray me as someone who could not be trusted."

Thousands of similar workers' compensation claims have been filed, and many more, some people say, have gone unfiled because of a lack of faith in the system. But each claim that is filed, and the information behind it, adds to the evolving assessment of the health effects of 9/11. One case can hint at the full implications of having inhaled the dust. Another can shed light on the health threat posed by the dust that was inadequately cleaned from apartments and office buildings.

All these months later, a few things are generally agreed upon about the health menace of 9/11: According to a recent report by several hospitals, the trade center collapse "caused the largest acute environmental disaster that has ever befallen New York City."

The dust cloud that spilled through the city contained asbestos, lead, mercury and other harmful substances, but scientists are still studying what kind of threat those substances posed after being pulverized and blended into a noxious mess.

Those who worked on the pile of wreckage immediately after the collapse had the most intense contact with the most toxic elements.

The effect on firefighters, who were the most visible workers on the pile in the first weeks, has been direct. So far, 325 are on restricted light duty and 69 are not working at all because they are on medical leave. An additional 320 who had trouble breathing have simply retired, and the department expects as many as 300 more to retire because of problems related to 9/11.

Beyond the Fire Department, one scientific study showed that women who breathed the dust had a greater chance of delivering underweight babies. Another showed that children with asthma who lived within five miles of ground zero saw doctors more often after 9/11.

But outside of such certainties, there is a less precise universe, one reflected in the experiences of the people who were exposed to the dust and who now believe that it sickened them, or planted the seeds of future illnesses in their bodies.

Day after day they come to courtrooms like Judge Solomon's, armed with stacks of medical reports and bureaucratic forms. The hearings are conducted in the sterile language of law and regulation, but the claims of physical and psychological harm can still be raw.

To be sure, some workers were compensated without argument - for an arm that was broken or an ankle that was burned. Some recovered back wages after months of frustration and financial hardship.

And some have not received any of what they believe they were owed.

Health officials estimate that about 40,000 rescue workers breathed that tainted air in the weeks after the towers collapsed. And about one quarter of them will pass through perhaps the most ambitious medical study program to be developed since the catastrophe, the World Trade Center Worker and Volunteer Medical Screening Program. The program was set up at Mount Sinai Medical Center and several other hospitals in July 2002. Doctors expect that half of the roughly 12,000 participants will show respiratory problems linked to their presence at ground zero.

Dr. Stephen Levin, a director of the program, said he routinely found workers with asthma, sinusitis and what has come to be known as World Trade Center cough. In addition, stress related to the events of Sept. 11 has led many to have flashbacks, panic attacks and psychiatric difficulties that have prevented them from working.

Most were not treated by doctors who specialize in occupational illnesses. Many never took the step of filing for workers' compensation.

"I've got patients who really should have stopped working, but they're hanging in there," Dr. Levin said. "Many of them say they simply are not going to get into a system that puts them through such hassles, even if we advise them to do it for their own protection."

Workers who do file claims enter a confusing world divided into several systems, each with its own rules.

More than 215 federal employees have filed claims with the federal workers' compensation system, and an additional 1,865 claims for trade center-related respiratory and stress problems have been filed with the Sept. 11 Victim Compensation Fund, which was set up by the federal government.

But by far the largest system is the New York State Workers' Compensation Board. So far, 7,887 claims for injury or exposure related to the trade center have been filed, 1,800 of them in the weeks leading up to the deadline last September. Of 6,694 claims that have been resolved, at least 839 dealt, in some way, with respiratory ailments.

Board officials would not disclose how many claims had been decided in favor of the workers, but lawyers involved in the system have said that employers have challenged a majority of the claims.

Insurance companies are reluctant to discuss workers' compensation hearings.

Judge Solomon, of the state workers' compensation court in Brooklyn, has handled many trade center cases, operating for months under special orders to resolve them as quickly as possible. In truth, he said, not much science is presented at the hearings.

"The insurance carriers are not raising as an issue what was in the air," he said. Rather, the focus is on whether claimants can produce sufficient medical evidence to show that their ailments were caused by exposure to the trade center site.

Proving that it was the trade center dust that made him too sick to work has made a difficult illness even more trying for Walter Jensen, a 57-year-old former subway conductor from Brooklyn.

On Sept. 11, Mr. Jensen, an Army veteran who said he was in good health that day, handed out bottled water near ground zero. After a few hours, he reported to work at the 34th Street station, where he tried to keep order on the platform. He said the fumes and debris that swept into the station behind incoming trains burned his eyes and throat, even though he wore a dust mask.

In the following months, he said, as the fumes lingered in the tunnels, his breathing became more labored. In August 2002, he had a massive heart attack and was out of work for four months. He reported for duty again in January 2003, but after four days he was too tired to work, he said, and was sent home.

He has not worked since.

Mr. Jensen has appeared in workers' compensation court five times since filing his claim for lost wages in February 2003. The lawyers representing the Metropolitan Transportation Authority have raised the possibility that it was his long history of smoking cigarettes or that the carpeting in his apartment might have caused his respiratory problems, not trade center dust.

He has not recovered a penny in lost wages.

Mr. Jensen hopes that if his compensation claim is resolved, he can recover roughly $65,000 in back wages, and something more.

"I need to have my dignity back," he said.

The transportation authority declined to discuss individual cases, but said it had challenged less than a third of the health claims linked to the trade center.

Mr. Chandler, the bus driver, was one of the workers who won a partial victory. On 9/11, he helped evacuate victims in his bus and saw some horrifying things.

He returned home late that evening with his ears throbbing, his throat raw and his mind replaying scenes of people jumping from the burning tower. His wife urged him to see a doctor, who diagnosed sinusitis and post-traumatic stress. He did not work for almost 10 months.

Mr. Chandler filed a claim for workers' compensation, but the lawyer for the transportation authority challenged it in court. The proceedings lasted 20 months. When the compensation court judge resolved the claim, Mr. Chandler was awarded $310 a week in back pay, about 60 percent of his regular salary.

Mr. Chandler is working again, but he says he tires easily.

Then there are the workers who feel that the insurers are out to deny the health effects of 9/11.

Marvin Bethea, an ambulance service paramedic from Queens, was coated with dust twice, as first one, then the other tower collapsed above him on 9/11. The dust clogged his lungs and made him sick. He said he developed asthma and high blood pressure. Five weeks after the towers collapsed, he had a stroke. He was 41.

Although he returned to work a few months after his stroke, Mr. Bethea said he had never fully recuperated. He said the lawyer who represented St. John's Queens Hospital, which runs his ambulance service, challenged his claim that his health problems were linked to the trade center dust. In fact, doubts were raised about whether he had been there at all.

A hospital official declined to comment on Mr. Bethea's case, but she said other employees injured at the trade center had received compensation.

"Given everything I went through,'' Mr. Bethea said, "you'd think the hospital would have told its insurer, 'Look, don't fight this. Let's just settle and take care of this guy.' "