dojN002657.xml

dojN002657.xml

born-digital

email

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2002-03-12

January 14, 2002

BY FAX: (301) 519-5956
AND CERTIFIED MAIL, RETURN RECEIPT REQUESTED

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 eligibility 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 the
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 of 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,
Comment by:
Zalkind, Rodriquez,Lint & Duncan LLP
Boston, MA

2002-03-12