dojN002264.xml

dojN002264.xml

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2002-01-14

January 14, 2002



Kenneth L. Zwick
Director, Office of Management Programs
Civil Division
U.S. Department of Justice
Main Building Room 3140
950 Pennsylvania Avenue NW
Washington, DC 20530

RE: Comments on Interim Final Rule regarding September 11
Victim Compensation Fund, 28 CFR Part104

Dear Mr. Zwick:

We hereby submit our comments on the interim final rule regarding the September 11
Victim Compensation Fund, 28 CFR Part 104. The comments set forth herein address the failure
of the regulations to meet their stated objective of treating victims of the terrorist attacks fairly,
predictably and consistently. Since the Air Transportation Safety and System Stabilization Act
provides that the mere submission of a claim under the Fund operates as a waiver of the right to
file a civil action for damages, Sec, 405(c)(3)(B)(i), it is critically important that the unfair and
inconsistent provisions discussed below be revised so that all individuals injured in the terrorist
attacks will be able to seek compensation from the Fund. The regulations as presently
promulgated exclude from Fund compensation those whose primary injuries are post-traumatic
stress disorder and those who, for good reason, did not receive treatment for more than twenty-
four hours. If such individuals submitted claims to the Fund and were found to be ineligible,
they would be deemed to have waived their right to seek damages in a civil action. Thus, any
individual whose eligibilty is uncertain will be forced to choose litigation and forego a claim for
Fund compensation.


1. The 24-Hour Rule

The Act provides that compensation under the Fund is limited to those who were at the
site of crashes at the time or in the immediate aftermath of the crashes and "suffered physical
harm or death as a result of such an air crash." Sec. 405(c)(2)(A). The regulations further
restrict eligibility by defining physical harm as "physical injury to the body that was treated by a
medical professional within 24 hours of the injury having been sustained or within 24 hours of
rescue" 104.2(c)(1). This artificial restriction fails to account for the chaos and confusion in
the aftermath of the attacks which prevented many injured individuals from seeking medical
treatment for several days. Indeed, the Center for Disease Control and Prevention's Morbidity
and Mortality Weekly Report of January 11, 2002 published a study which showed that fewer
than 800 people were treated at hospitals nearest to the World Trade Center over the two days
following September 11.

There are many legitimate reasons why victims of the September 11 terrorist attacks may
not have received medical treatment within 24 hours of injury or rescue. During the first 24
hours after the attack, many victims who were able to stumble away from the scene may have
been suffering from shock rendering them incapable of seeking appropriate medical care or even
identifying medical problems until they eventually received assistance from others to do so.
There were probably many victims in New York City who tried to seek prompt medical care, but
were unable to obtain it due to the overburdened emergency medical system and the disruption
telephone communications during those initial hours of crisis. It would be unfair to deny
eligibility for compensation through the Fund to victims who did not obtain immediate medical
care for any of these types of reasons.

Therefore, we propose that this provision of the regulation be amended to require that
claimants sought treatment by a medical professional within a week of the injury having been
sustained or identified or within a week of rescue.

2. Exclusion of Compensation for Damages Related to Post-Traumatic Stress Disorder.

The regulation's definition of the statutory term "physical harm" excludes Fund
compensation for those suffering from post-traumatic stress disorder(PTSD) who have no
"physical injury to the body" meeting the requirements of 104.2(c), although PTSD sufferers
may experience physiological symptoms^1 which would reasonably be deemed to constitute
"physical harm." This exclusion drastically undermines the regulation's stated purpose of
providing fair and consistent compensation to the victims of September 11. The eligibility
regulations include individuals who sustained relatively minor physical injuries while excluding
individuals suffering sever emotional and mental trauma whose actual damages may be much
more significant. For example, a person who was on the street near the World Trade Center at

^1 See the American Psychiatric Association's Diagnostic and Statistical Manual of
Mental Disorders, Fourth Edition("DSM IV")309.81.

the time of the attacks, but before the collapse of the buildings, began running, tripped and
sprained his ankle, and was taken to the hospital would be eligible for compensation, while a
person who was on a high floor of the North Tower of the World Trade Center when it was hit,
struggled for over an hour to descend the stairway, exited the building as the South Tower
collapsed around him, witnessed the horrific scene of carnage at the site, and (while not
sustaining any "physical injury to the body" as defined by 104.2(c)), developed a severe,
protracted, and totally disabling case of post-traumatic stress disorder would not be eligible for
any compensation.

Moreover, it seems(although it is somewhat ambiguous) that, for those who have both a
"physical injury to the body" and post-traumatic stress, only those economic losses(including
medical expenses and lost earnings) and non-economic losses which were caused by the physical
injury are compensable. 104.45(a) and (b) and 104.46. These provisions of the regulations
thwart the statutory provision that "emotional pain" and "mental anguish" are compensable,
losses. Sec. 402(7).

Therefore we propose that post-traumatic stress disorder be included within the
regulation's definition of "physical harm". Alternatively, the regulation should be amended to
make it clear that, for those who meet the physical injury eligibility requirement of 104.2(c), all
economic and non-economic losses caused to them by the airline crashes be compensable,
including damages resulting from post-traumatic stress rather than from physical injury.

Thank you for your consideration of these comments.

Very truly yours,

Individual Comment

2002-01-14