This document explains how VCF non-economic loss awards are calculated, and how WTC Health Program certified conditions are considered when calculating the award. Claimants should not seek additional certifications from the WTC Health Program in an attempt to increase their VCF award. Additional certifications are only appropriate when needed for treatment.
FACTS: Calculation of VCF Non-Economic Loss (“pain and suffering”) Awards
The amount of non-economic loss is not tied to the number of certified conditions. It is possible that an individual with many relatively mild conditions would receive a non-economic award that is less than that of an individual who has only one condition that is severe.
The non-economic loss portion of the award is based on the severity of the certified condition(s) and the effect of the condition(s) on the individual’s ability to maintain normal activities of daily living.
Severity is not evaluated based on additional certifications. Although additional certifications may be an indicator of severity, they should only be sought if needed fortreatment. Claimants may show severity for purposes of non-economic loss by providing recent medical records, a letter from a treating physician, test results, etc. See page 2 for additional details of the documentation the VCF accepts to support severity of the condition.
The non-economic loss award is not automatically tied to the degree of disability. A claimant may be partially disabled from performing a certain occupation due to his/her eligible injury or condition, but the fact of an occupational disability alone will not warrant a non-economic award higher than the presumptive “base” value.
Non-economic loss awards range from $10,000-$90,000 for non-cancers, up to $250,000 for cancers, and in a small number of cases, up to $340,000 for multiple cancers or cancer with multiple severe non-cancer conditions.
The VCF has established “baseline” awards for various conditions. These “base” values are awarded without the need for medical records or other documentation.
Emphysema, Interstitial Lung Disease (including Asbestosis), and Sarcoidosis have been determined by the VCF to be presumptively severe and debilitating and warranting the highest non-economic loss award allowed under the statute for a non-cancer condition ($90,000). Claimants do not need to provide medical records or other documentation to support severity of these conditions if they are certified.
The Prostate cancer baseline award is $200,000. To demonstrate the severity required for a higher non-economic loss award, claimants do not need to seek additional certifications related to their Prostate cancer unless they are needed for treatment purposes. Complications from prostate cancer surgery and treatment, while relatively common, can be temporary. Because temporary complications should not result in higher awards, the VCF requiresmedical records demonstrating permanent complications, recurrence, or metastasis of prostate cancer to qualify for the higher $250,000 award.
The Special Master has identified certain conditions (see table below) as presumptively less severe and debilitating and thus warranting lower awards, absent medical documentation of severity. While some of these conditions can have severe impacts on individual patients, the VCF requires evidence of such severity before considering an increase in the award. Additional conditions should not be certified to show severity for VCF purposes; they should only be certified if needed for treatment.
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Types of Documents accepted by the VCF to Demonstrate Severity of a Certified Condition
The VCF focuses on recent documentation, from within three years of the claim submission date, when evaluating severity for non-economic loss. The types of documents listed below can assist the VCF in evaluating the severity of the condition:
Recent medical documents that show the type and frequency of medical treatments for the condition. Example: Documents that show hospitalization, surgery, emergency treatment, and/or treatment for side effects of the condition.
Recent test results and treatment prescribed that show the severity of the condition. Example: Pulmonary function test results, including the physician’s interpretation of the tests. Other examples include computed tomography scans, x-rays, endoscopies, esophagogastroduodenoscopies, laryngoscopies, polysomnography or sleep studies, or other diagnostic and treatment procedures.
Recent documentation of the medications required to manage the condition and how often the medications are taken, including the type of medication prescribed and the frequency of use of the medication.
A document from the treating provider summarizing the medical history of the condition and treatment.
Letters or reports from specialists who treated the eligible conditions that explain how the condition has limited activities, or an explanation of the effects of the condition.
Records of state and federal agency proceedings or private insurance records that address the medical condition.
A personal statement from the claimant discussing the impact of the eligible conditions on their life, with corresponding medical records. Such a statement is most helpful if it provides a timeline and details on the medical treatments the individual has experienced.
Examples
The examples below are for illustrative purposes only to show that additional certifications do not automatically lead to higher non-economic loss awards. The VCF reviews each claim individually and calculates the award based on the specifics of the individual claim.
Certified | Medical Records | Other certified | Non-Economic Loss |
| Prostate Cancer | No | No | $200,000 baseline for Prostate cancer |
| Prostate Cancer | No | Yes – for non-cancer condition that is not presumptively severe | $200,000 |
| Prostate Cancer | Yes – medical records support severity | No | $250,000 (statutory cap) |
| Emphysema | No | No | $90,000 for condition that is presumptively severe (statutory cap) |
| Emphysema | No | Yes – multiple non-cancer certifications | $90,000 (statutory cap) |
References: The references listed below provide additional detail and are available on the www.vcf.gov website.
- VCF Policies & Procedures: General information about the calculation of non-economic loss, severity, and medical records – see Section 2.1.c: https://www.vcf.gov/policy/calculation-loss#toc-c-documentation-of-non-economic-loss-
- Notes from meeting with law firms – specific to Prostate Cancer awards and medical records: See bottom of page 3 to top of page 4: https://www.vcf.gov/sites/vcf/files/media/document/2020-03/LawFirmUpdateDec2019.pdf
- VCF Just the Facts: https://www.vcf.gov/general-information/just-facts (excerpt below).
