dojW000464.xml

dojW000464.xml

born-digital

email

yes

no

2001-11-21

Wednesday, November 21, 2001 12:49 PM
Comments: Victims Compensation Fund - September 11th

Dear Mr. Zwick,

It is with great concern, and hope of preventing what may be a grave
injustice to all the families who lost loved ones during the tragic events of September 11th, 2001 that I am compelled to contact you.

On September 11, the very fabric that symbolized the American family was torn with such finality as to eliminate any possibility of mending with "monetary thread." Despite that realization, I understand that the only compensation available to the families of those lost on that horrific day is monetary in nature. Subsequently, the establishment of the "Victims Compensation Fund" (the fund) is logical. However, while the establishment of the fund is logical, I fear that the guiding principals and mechanics of the fund are not. After all, it is commonly stated that "the distance between thought and deed is often far."

Having said that, and having reviewed the parameters of the fund, I felt it was imperative to share with you the many reservations associated with the fund's ability to accomplish its single purpose - economic equity for those now painfully suffering from the lose of their loved ones. Below, you will find those reservations.

First and foremost, it is imperative that each and every claimant be given the opportunity to share their unique circumstances with the individuals who will be instrumental in determining an award. In doing so, each claimant should be afforded both the opportunity to present evidence through their own personal testimony and enlist the assistance of experts, if desired, in order to provide a clear and concise depiction of their position. Allowing such an opportunity will ensure fairness and objectivity as each case will be heard separately and awards will be based on the circumstances associated with each
case. On a personal note, the ability for an individual to share their pain and suffering is instrumental to the long journey associated with the healing process that every individual must now embark upon.

Second, I am alarmed by the fact that the government, who will ultimately pay the awards, will be "appointing" one individual (The Special Master) to determine the "extent of harm to the claimant," the amount of compensation to be awarded based on "the harm to the claimant," "the facts of the claim" and "the individual circumstances of the claimant." While I understand that the "Special Master" will be designating individuals (hearing officers) to hear each case independently, that knowledge does not instill the confidence or
peace of mind that I require to participate in the fund. Instead, I would prefer an independent panel, perhaps three (3) to five (5) individuals, who demonstrate expertise in areas such as "human life value," "wrongful death" and "taxation." I believe that these Individuals along with a "hearing officer" are more likely to determine an award that is commensurate based on the unique circumstances of each individual. Additionally, I believe by maintaining a panel of "hearing officers," the decision making process would demonstrate a greater degree of objectivity.

Equally alarming is the fact that the determinations made by the "Special Master" and "hearing officers" are "final" and "not subject to judicial review." It is imperative that the option to appeal such a determination be made available to the claimants. Again, fairness and objectivity should be the guiding principals of the fund. In the event an award is not viewed as equitable, an individual should, as in any hearing, maintain their right to appeal a decision. The right to appeal a decision is often a cornerstone of legal defences. If appeal is available to a criminal, why then should an innocent person not be afforded that same courtesy?

Next, the method used to compute "economic loss" is of paramount importance. A "cap" with regard to recovery associated with "economic losses" is simply not acceptable. In fact, we believe an approach such as the one commonly utilized in personal injury cases is most applicable. Pursuant to such a method, the deceased's retirement date should be set to coincide with the date that the deceased would have been eligible to receive full Social Security benefits. Also, the deceased's income should be averaged over the last three (3) years given the fact that "economic losses of many of these individuals
are associated with future income streams that would have been highly
contingent, variable, or unpredictable " With that in mind, an approach that utilizes an "average income" is obviously the most appropriate method for determining an individuals income. Also, be sure to keep in mind that it is imperative that "income" include wages, bonus', stock options, partnership earnings etc. Finally, in an effort to fully reflect the earning potential of those lost on September 11th, inflation, historical wage increases, merit and opportunity for advancement must be considered. The final result of such an exercise would represent the individual's "base income." The "base income"
could then be multiplied by the number of years that the deceased individual would have worked had he/she been eligible to receive full Social Security benefits.

Furthermore, with regard to reducing the amount of the compensation by the amount of the "collateral source compensation," Life insurance proceeds (private and/or group) associated with premiums paid by the deceased, should not be considered as a "collateral source." After all, the deceased, in an effort to ensure financial support for his/her family, made a prudent decision to dedicate a portion of his/her after tax income to that financial security.
To consider life insurance proceeds associated with premiums paid by the deceased as a "collateral source" would be akin to punishing the deceased for loving & caring enough about his/her family to ensure their financial future in the event a tragedy were to occur.

Also, Social Security benefits should not be considered as a "collateral source." After all, the deceased paid into the system in an effort to ensure "social security." Unfortunately his/her family now represent the members of society that are in need of the very "security" that the system was designed to provide. The deceased was not give a choice of "opting out" of the social security system. On the contrary, an individual has no choice but to contribute to the Social Security system. With that in mind, it is obvious that his/her family should not be punished for receiving such benefits.
After all, the Social Security system was never intended to be a "needs based" benefit. All individuals, regardless of income and assets, assuming that they secured the appropriate number of "quarters," have always been entitled to benefits regardless of the other type of assets/income that they may or may not have. Interestingly, countless millionaires receive Social Security benefits despite the fact that the income is not needed to ensure their financial well being. With this in mind, why should a benefit that plays an instrumental role with regard to a family's financial security be deducted from an award?

Next, retirement plans (IRA's, 401 k, etc.) funded by the actions and
sacrifice of the deceased should not be considered as a "collateral source." Again, the deceased, in an effort to ensure financial support for his/her
family, made a prudent decision to set aside funds designed to ensure a
comfortable retirement. A great deal of legislation (past & present) has
been adopted in order to motivate individual's to plan for their financial
future.
Today represents the first step of that financial future. To consider
retirement plans a "collateral source" would again be akin to punishing the
deceased for loving and caring enough about his/her family to forgo current
enjoyment in order to ensure financial stability in the event of a tragedy.

Additionally, A "cap" with regard to recovery associated with "non economic
losses" is simply not acceptable. In fact, it is imperative that the
assistance of experts in the field of "human life value," be enlisted to
determine an appropriate award given the ambiguity associated with valuing
the "non economic role" of an individual. After all, the lose of the family
unit, enjoyment of life and emotional pain is not easily discernible.

However, given that I am both questioning the "fairness" of the fund and
taking the position that benefits (life insurance proceeds & social security
benefits) associated with payments made by the deceased should not be
considered "collateral source compensation," it is understandable that the
benefits funded by an employer (i.e. Workers Comp.) may be deducted from an
award. After all, the maintaining of "Workers Compensation" is mandatory
for employers and the premium associated with such coverage is an expense of the
employer. This in turn may make this benefit similar in nature to the
employer provided, non-contributory life insurance coverage - the $100,000
received from CNA. With this in mind, it is easy to understand that the
"benefit" is employer provided and may be considered a "collateral source
compensation."

In closing, I would like to take a moment in advance to thank you for a fair
and impartial assessment of our comments. Of course it our only hope to
ensure that any award associated with the fund is fair and equitable and
accomplishes the funds single purpose - economic equity for those now
painfully suffering from the lose of their loved ones.

Sincerely,

Individual Comment

2001-11-21