May 29, 2007

Ashes to Ashes, Dust to Compensability?

Felicia Dunn-Jones was a civil rights lawyer who worked one block away from the World Trade Center. She fled the office on 9/11, inhaling dust from the falling towers. She was covered with ash laced with asbestos and other hazardous material as she ran for safety. Now, nearly six years later, over five years after her death, New York City Medical Examiner Dr. Charles Hirsch has determined that Dunn-Jones's death was related to the 9/11 attack. In the days and months following the attact, Dunn-Jones developed a serious cough and had trouble breathing. She died five months later.

Dr. Hirsch has amended Dunn-Jones's death certificate to indicate that exposure to trade center dust "was contributory to her death." The manner of death thus changes from natural causes to homicide.

The medical examiner still has some doubts as to whether the trade center dust caused the sarcoidosis that killed Ms. Dunn-Jones. He suspects it was a pre-existing condition, nonetheless clearly and significantly aggravated by the exposure on 9/11.

Who Pays?
The issue for Dunn-Jones's family is not one of payment. They have already received $2.6 million from the Victim Compensation Fund. But it does raise an interesting question relative to workers compensation: was Dunn-Jones's illness work-related?

In the moments following the attack, Dunn-Jones fled her office. Technically, once she reached the streets, she was no longer at work...She was commuting, heading away from work. She eventually made her way home to Staten Island.

An administrative law judge could reasonably conclude that this is not a work-related illness. Dunn-Jones happened to be at work, which happened to be near the World Trade Center, which happened to be attacked. Once she fled the building, she was a commuter (a commuter suffering from terror, but a commuter nonetheless). On the other hand, an equally reasonable judge might lean toward compensability, based upon the fact that Dunn-Jones was at work when the attack took place - and it was physically impossible for her to remain there. She was not engaged in an ordinary commute, but a horrific flight from immanent danger.

Perhaps these are morbid distinctions that most of us would prefer to ignore. But the center attack is certainly not the last incident of its kind. Millions of employers are paying for workers comp policies, under the assumption that employees are covered for work-related injury and illness. If and when the next attack comes, the issue of compensability will quickly become paramount. It is no exaggeration to state that the future of the insurance industry as a whole might be at stake.

In the meantime, we would do well to return to the Book of Common Prayer for consolation. Sure, we are inclined in this country to translate tragedy into dollars. Someone must pay for all the pain, suffering and loss. But beyond the issue of jackpot settlements lies the simple fact of our mortality. "Earth to earth, ashes to ashes, dust to dust."

| 7 Comments

7 Comments

My office is 500 feet from ground zero. i dare you to come to NY and look itno the faces of the widows and children when you controvert the claims. The CEO of AIG consistently made 40 - 45 million in salary in the 1990's let him donate some of the profit. you should be ashamed of yourself for raising the topic. now crawl back under your rock.

Hughbagg: I am not controverting any claims. My self-appointed task is to frame the issues as clearly as I can. In the heat of these very emotional issues (Katrina is another one), people lose sight of the fact that compensability is a matter of contract law, which is interpreted by judges. And two judges might view the same set of facts in a totally different manner. Any and every compensable claim should be paid. But post facto fudging of criteria to force payment creates a whole new set of problems - and generates a cost that we all end up paying. I make no apologies for my divided sympathies and by the way, I do not live under a rock.

Jon:

Personal attacks such as Hughbagg made are inappropriate and do not deserve your response. Not that I always agree with you.

In quoting the bible one can find almost any position (not unlike judges) and I would prefer in relationship to our mortality the last line of the 23rd paslm.

The LORD is my shepherd; I shall not want.
He maketh me to lie down in green pastures:
he leadeth me beside the still waters.
He restoreth my soul:
he leadeth me in the paths of righteousness for his name's sake.
Yea, though I walk through the valley of the shadow of death,
I will fear no evil: for thou art with me;
thy rod and thy staff they comfort me.
Thou preparest a table before me in the presence of mine enemies:
thou anointest my head with oil;
my cup runneth over.
Surely goodness and mercy shall follow me all the days of my life:

and I will dwell in the house of the LORD forever.

Keep up the good work.

Sincerely,

Charles Read

Isn't it funny how claims people can make such clear policy determinations such as this one but forget the bigger picture...
I guess Ms. Felicia Jones was supposed to stay in her building, with the added risk that her building could get hit a plane or perhaps her building could have gotten hit when the towers collapsed at which point a claims person what have said (probably to the claimant
family as the claimant would be dead) that she could have prevented her injuries if she had left the building.
I think claim decisions like this are a big part of why there is so much litigation which is then blamed upon claimant attorneys.
Our industry never seems to grasp this fact..Fortunately,
the judges and juries do...
Then we just blame it them!

If Dunn-Jones was fleeing from an an environmental assault at her office, and died from that assault from exposures as she fled, it seems to be pretty clear that she suffered a work-related death.

We should, however, stop a moment to ask if the assault happened in the course of and arose out of employment. There was an immediate decision to label WTC deaths directly attributed to the attack as work related. I am not going to dispute that but it is worth noting that the logic is not impeccable.

i have not stopped laughing .prayer. RELIGION HAS ABSOLUTELY NOTHING TO DO WITH THIE ISSUE.you are kidding correct. i still challenge you to come to NYC and look into the child of a decedant and quote the lords prayer while stripping them of benefits. excuse me about the rock comment. crawl back underneath your haty seed.

Peter,

I find your comment interesting. I would automatically assume that since the people were at work at the time of the attack, they would be compensate (using the logic of "if they hadn't been at work, they wouldn't have been injured," etc.) But I'm curious to hear how you see it differently.

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This page contains a single entry by Jon Coppelman published on May 29, 2007 2:05 PM.

The case of Edgar Velázquez and Billy G’s Tree Care was the previous entry in this blog.

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