Section 2: Calculation of Loss (Compensation)

By law, the VCF can only compensate for losses caused by eligible conditions related to the events of September 11, 2001.  In addition, the law requires the Special Master, in each case, to take account of the harm to the claimant, the facts of the claims, and the individual circumstances of the claimant.   Our claim analysis therefore always begins with three essential questions: was there a demonstrable loss, can we reasonably conclude the loss was caused by a WTC-related eligible condition, and what makes sense in the context of this claimant and the individual circumstances of this claim?

Three principles guide this inquiry.  First, the VCF strives to be fair to all claimants.  This means that we consider both fairness to the individual claimant as well as fairness to the entire claimant population, with priority given to those who suffer from the most debilitating physical conditions. Second, everything we do must be faithful to the statute that authorizes our work, the VCF Act (codified at 49 USC 40101 Note, Title IV).  And third, because we are spending public funds, we must ensure that every aspect of the award is adequately justified and documented.

The VCF is committed to transparency about the claim review process.  To that end, the sections below provide detailed information about how we generally evaluate and calculate compensation for non-economic and economic loss.  Given the volume and variability of claims, and the legal requirement that the Special Master consider individual circumstances in each case, however, it is not possible to cover every potential situation in this document.  Therefore, this information should be viewed as a general guide to how the VCF implements our fundamental principles: fairness to the claimants, faithfulness to the statute, and accountability to the public, in the service of compensating demonstrable loss caused by an eligible condition.

a. Compensation Review Process 

Once the VCF confirms that you have met the eligibility criteria, we begin initial review of your compensation information.  This includes determining the types of loss being claimed. Claims seeking only non-economic loss are the simplest and fastest to review. Non-economic loss is sometimes called a “pain and suffering” award. This is determined based generally on the nature and severity of your condition and the effect of the condition on your activities of daily living; it does not take into account economic loss caused by the condition.

Economic loss is pecuniary loss caused by an eligible condition: loss of earnings or other benefits related to employment, the cost to replace household services previously provided by the victim, certain past medical expenses, and expenses associated with a burial or memorial service in the case of a deceased victim.  If you are claiming economic loss, we obtain information and documentation from various third parties, such as the Social Security Administration (“SSA”), the FDNY, the NYPD, and the New York State Workers’ Compensation Board, regarding your disability, earnings history, and/or pensions if we have not already done so as part of our preliminary eligibility review.

If your claim is missing documentation that we need in order to calculate your award, you will receive a missing information letter.  It is important that you respond to all missing information letters within the timeframe specified in the letter.  If you do not respond to our missing information request after 30 days, we will render a decision based on the information contained in your file at that time. 

Please be aware that any documents you submit after we have finalized the substantive review of your compensation claim will not be reviewed as that review would delay the issuance of your award determination.  If you submit documents after the VCF finalizes substantive review of your claim, but before your award letter is issued, we will notify you in the award letter that the documents have not been reviewed. The letter will explain the next steps to take on your claim.

b. Substantive Compensation Review and Calculation of Award 

Each award is calculated individually.  As required by the VCF Act, your final award will be calculated using this basic formula:  Non-Economic Loss plus Economic Loss, minus Collateral Offsets.  Collateral offsets are compensation from other sources that you received or became entitled to receive as a result of your eligible injury and must be subtracted from the award.  More information about Non-Economic Loss, Economic Loss, and Collateral Offsets can be found in the sections below.

Our review includes: determining non-economic loss based on the severity of physical harm; calculating economic loss, including past and future lost earnings (if claimed); and confirming collateral offsets, including payments received from pension funds, life insurance, SSA, Workers’ Compensation, and settlements from 9/11-related lawsuits.  Claims that have more complex compensation information take more time to review.

To calculate economic loss, the VCF must first determine whether there is in fact a compensable loss. There are three types of economic loss: loss of earnings/benefits, out-of-pocket medical expenses, and replacement services loss. Each of these types of loss is explained in the sections below.   

If we do not receive the documents necessary to calculate economic loss, or if the documents are not submitted in a timely manner, we may issue an award for non-economic loss only.  In certain situations, we may deactivate your claim and stop our review if we are missing critical information.  This includes information about collateral offsets that apply to both economic and non-economic loss, proof of cause of death for a wrongful death claim, or a missing Exhibit 1, which allows us to receive information from SSA in support of your claim. 

If you submitted a claim for economic losses, but the VCF issues an award for non-economic loss only because of missing documents, the VCF will reconsider the economic loss award only on amendment.  This means you must submit an amendment and request re-review of your economic loss claim.  See Section 5 for additional information about amending your claim.  Note: In deceased claims, once we have finalized substantive review of your  compensation claim, you will not be able to amend your claim to provide any missing information that you did not previously submit. For this reason, if you are filing a claim on behalf of a deceased individual we strongly urge you to submit your claim only once you can provide all materials needed to support the claim. 

Once the award is calculated, we send you a letter explaining the breakdown of your award and an option to appeal within 30 days if you believe an error was made in the calculation.  If you do not appeal, we authorize payment within 20 days of the end of the 30-day appeal period.  If you do appeal, payment is authorized once a decision is rendered following your appeal.

 

2.1  Non-Economic Loss

The VCF Act defines non-economic loss as losses for physical and emotional pain, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium (other than loss of domestic service), hedonic damages, injury to reputation, and all other non-pecuniary losses of any kind or nature.

Each person who was killed or injured in the September 11th attacks suffered grievous harm, and each person experienced the unspeakable events of that day in a unique way.  After extensive fact finding, public outreach, and review of public comments in the original VCF, the Special Master and the Department of Justice concluded that the most rational and just way to approach the difficult task of placing a dollar amount on the pain and emotional suffering experienced by the thousands of individuals killed or injured by the September 11th attacks was to assess the non-economic losses for categories of victims.

 

a.   Valuation of non-economic loss  

Non-economic loss for death

The regulations set a presumed award for non-economic losses sustained by the victim, and the victim’s spouse[1] and dependents, because of the victim’s death as a result of the September 11th aircraft crashes or subsequent debris removal: $250,000, plus an additional $100,000 on account of the spouse and each dependent of the decedent. The latter figures – $100,000 on account of the spouse and each dependent – include a non-economic component of "replacement services loss."

Non-economic loss for injury

The VCF Act establishes certain caps on non-economic awards for physical injury claims. The maximum non-economic loss for any one type of cancer condition is $250,000, and the maximum non-economic loss for any one type of non- cancer condition is $90,000. If the victim has more than one type of cancer, the Special Master may issue an award that makes an adjustment above $250,000 to account for multiple cancers. Similarly, if the victim has cancer and severe non-cancer conditions, the Special Master may issue an award that makes an adjustment above $250,000 to account for multiple conditions.

The VCF Act also requires that the Special Master prioritize claims with the most debilitating physical conditions. Accordingly, non-economic loss is based generally on the severity of the condition and the effect of the condition on the victim’s ability to maintain normal activities of daily living. Important Note:  The amount of non-economic loss is not tied to the number of certified conditions.  It is possible that an individual victim with many relatively mild conditions would receive a non-economic award that is less than that of a victim who has only one condition that is severe. For example, a victim who has a respiratory condition that significantly restricts the victim’s ability to participate in activities of daily living and recreation, or that is progressive and not effectively treated, may have a higher non-economic award than a victim who has a mild respiratory condition and another mild condition which have not had a significant effect on their activities of daily living.  Please keep this in mind when considering whether to seek certification of additional conditions through the WTC Health Program. 

The maximum amount for eligible non-cancer conditions is $90,000.  The maximum is awarded only where a condition has a consistent, sustained, and exceptionally severe impact on a victim’s quality of life. As a general rule, under the terms of the VCF Act, the Special Master has identified the following conditions as presumptively severe and debilitating and warranting the highest allowable non-economic loss award for a non-cancer condition, without any further documentation: Emphysema, Interstitial Lung Disease (including Asbestosis), and Sarcoidosis. 

When the victim demonstrates mild or negligible impairment on daily life, or if the eligible conditions have resolved over time or are reasonably well-controlled through over-the- counter medication, the non-economic award begins at $10,000 and may increase depending on the severity of the condition as demonstrated by recent medical records (medical records that are dated within three years of the claim submission date). As a general rule, under the terms of the VCF Act, the Special Master has identified the following conditions as presumptively less severe and debilitating and thus warranting lower awards, absent medical documentation of severity, than the highest allowable for a non-cancer condition: Asthma/RADS, Barrett’s Esophagus, Bronchiecstasis, Chronic Airway Obstruction, Chronic Bronchitis, Chronic Cough, Chronic Obstructive Pulmonary Disease, Chronic Rhinitis, Esophagitis, Gastroesophageal Reflux (GERD), Laryngitis, Nasopharyngitis, Obstructive Sleep Apnea, Pharyngitis, Respiratory Conditions due to Fumes or Vapors, Rhinosinusitis, Sinusitis, and  Traumatic Injury or Musculoskeletal Disorder.  While some of these conditions can have severe impacts on individual patients, the VCF will require evidence of such severity, in the form of recent medical records supported by impact statements and/or appeal testimony, before considering an increase in the award.

For eligible cancers, the non-economic award will generally range between $90,000 and $250,000, depending on the type of cancer and the medical evidence provided regarding metastasis, recurrence, and/or permanent complications.  For example, if a victim is certified for two different types of non-melanoma skin cancer – for example, basal cell and squamous cell – or for one non-melanoma skin cancer at multiple sites, the award will generally be in the range of $90,000. 

The Special Master may consider multiple conditions together to determine an aggregate award, which may exceed $250,000.  For example, the victim may suffer from multiple types of cancer or may have a severe non-cancer eligible condition along with an eligible cancer. In such cases, the non-economic award may be greater than $250,000, with a maximum award, under current VCF policy guidelines, of $340,000 for multiple severe conditions.   

Note:  The non-economic award is not automatically tied to the degree of disability (to the extent there is an occupational disability determination as a result of an eligible 9/11-related physical injury or condition).  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.  As noted above, the non-economic award is based generally on the severity of the condition and the effect of the condition on the victim’s ability to maintain normal activities of daily living, as demonstrated by recent medical records, except in those cases treated as presumptively severe (where medical records are not needed in order to qualify for the highest award allowed by the statutory caps). 

Note: If you received a non-economic loss award in VCF1, the VCF will consider the amount previously awarded when determining whether additional compensation is warranted in light of the 2015 reauthorization statute’s prioritization mandate and non-economic loss caps.

b.   Special Master authority to award non-economic loss above the statutory cap  

When considering the authority provided by the VCF Act to issue non-economic loss awards above the statutory caps in special circumstances, the Special Master’s intention (consistent with the intent of Congress) is to exercise this authority in very limited and unique circumstances, and only for non-cancer claims.  The $250,000 cap for a single cancer condition will not be exceeded under this authority. 

The exception will be made only in the small number of non-cancer claims where the claimant has an interstitial lung disease (“ILD”) or other pulmonary illness where the effects of the condition are so severe that they are similar in all relevant respects to what a claimant with lung cancer might suffer.  These claimants might require lung transplants (sometimes double lung transplants), or significant mechanical respiratory assistance on a daily basis.  The Special Master interprets the statutory language to allow compensating these limited number of severe non-cancer claimants in the same way that a cancer claimant would be compensated – meaning, $250,000 for a single condition, and a maximum award, under current VCF policy guidelines, of $340,000 for multiple severe conditions.  This is the bar by which the Special Master will measure the appropriateness of an increase above the cap, and it will be done in consideration of all other circumstances of the claim and the totality of the award. If you believe you meet this threshold, you should request “special circumstances” consideration on appeal after your initial award has been determined.  If you have a prior claim that has already been decided and paid, and you believe you should be considered for the exception, please amend the claim to submit the request for review.

c.  Documentation of non-economic loss   

If the WTC Health Program has certified your condition, no further documentation is necessary to support a claim for non-economic loss; the VCF will award non-economic loss at the lowest end of the range for the applicable condition based solely on the WTC Health Program certification. If, however, the certified condition significantly impairs activities of daily living or if the certification does not reflect the severity of the condition, additional documentation of the types described below can help the VCF evaluate whether an increased non- economic loss award within the appropriate range is warranted.

To help the VCF understand the severity and effect of your condition, you may want to submit supporting documents related to your condition with your claim. The VCF focuses on recent documentation, from within three years of the claim submission date, when evaluating non-economic loss.  For example, if a claim is submitted on January 1, 2020, recent medical records are those dated after January 1, 2017.  If you submit medical records that fall outside of the three-year timeframe, you must highlight them and provide an explanation about why they are important.  Please only submit documents that are related to your 9/11-related eligible physical conditions.  If the medical records submitted with your claim meet the three-year timeframe, you do not need to continue to submit medical records on your claim unless the VCF requests them.  The types of documents listed below can assist the VCF in the evaluation of your claim:

• Recent medical documents that show the type and frequency of medical treatments you have had for your condition. For 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 your condition. For example, many people with respiratory injuries have pulmonary function tests. If you have had such tests, please submit the 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 medical records documenting severity and/or effect of the condition on daily life.
• Recent documentation of the medications required to manage your condition and how often you take those medications. The type of medication prescribed and the frequency of use of the medication can help demonstrate the severity of the condition.
• Recent medical records or treating physician statements showing use of assistive devices that significantly impair activities of daily living – such as breathing devices that may be used for Obstructive Sleep Apnea.
• If your condition has limited your activities, please submit any explanation or documentation that explains this effect of your condition. For example, you could submit letters or reports from specialists who treated your eligible conditions.
• Records of state and federal agency proceedings or private insurance records that address your medical condition.
• A personal statement discussing the impact of the eligible conditions on your life. Such a statement is most helpful if it provides a timeline and details on the medical treatments you have experienced. Note that in general, the VCF will need medical records substantiating claims of medical procedures (surgery, etc.).

A document from your physician summarizing the medical history of your condition and treatment will often be sufficient to prove the extent of your non-economic loss. If you submit medical records, please highlight the relevant information in the records so the VCF can easily find the pertinent information or provide a written guide or statement directing us to the relevant pages.  In order to accelerate the review of claims for all claimants, the VCF will not review voluminous medical records (i.e., 75 pages or more) that are submitted without highlighting or a written guide. The VCF will award the lowest end of the range for your conditions and request that you submit an amendment with the required information if you would like the VCF to consider the medical records submitted when assessing severity for purposes of awarding non-economic loss.

 

2.2  Economic Loss: Lost Earnings and Benefits 

If you are physically injured as a result of an eligible condition, you can make a claim for earnings/benefits you lost before you submitted your claim to the VCF, and you can make a claim for earnings/benefits you expect to lose in the future (after submission of your claim) as a result of your eligible condition.

If you are submitting a personal injury claim and you claim a loss of earnings, the VCF must determine whether you are unable to work, or have a reduced ability to work, as a result of an eligible 9/11-related physical condition.  If that is the case, then the VCF must determine the extent of that loss.  The VCF will then compute the amount of past and/or future lost wages in light of these factors (as explained below).  Note: The VCF considers and calculates losses suffered before you submit your claim for lost earnings as “past” losses, and losses suffered after you submit your claim for lost earnings as “future” losses.

If you are filing a deceased claim (i.e. a claim on behalf of a victim who died as a result of an eligible 9/11-related physical condition), you can make a claim for lost earnings/benefits incurred before the victim died as a result of an eligible condition and you can make a claim for the lost future earnings resulting from the death of the victim.  

See Section 2.3 for a detailed explanation of the methodology used to calculate future lost earnings

This section describes the evidence you must submit to substantiate your claim for lost earnings. In general, you must submit:

1. Evidence that you are or were unable to work as a result of an eligible condition.
2. Information about your earnings and benefits, so that the VCF can determine the amount of loss. Sections 2.2.f-i contain information specific to victims who worked for New York City (including FDNY and NYPD) and the Federal government (including military and military reserve); and
3. Information about compensation you received from collateral sources that must be subtracted from your lost earnings award.

 

a.  Documentation of earnings history    

The VCF generally will use information obtained from the Social Security Administration (“SSA”) to determine earnings history. You must complete and submit a consent for release of SSA information (Exhibit 1 to the Claim Form) in order for the VCF to obtain this information.

If you did not have SSA earnings (e.g., worked outside the United States or do not have a Social Security number), then you must provide other documents demonstrating earnings – including  tax returns,  statements of profit/loss  from a business  (if self- employed), W2 forms, 1099 forms, pay stubs, or employment offer letters.

If you believe that your SSA earnings history does not fully account for future earnings potential, then you must provide documentation supporting any argument that the VCF should take into consideration other information in determining future earnings. For example, if you received a promotion before becoming disabled and if the earnings history did not reflect that promotion, then you must provide proof of the promotion and any earnings adjustment resulting from the promotion. If you were eligible for bonuses, deferred compensation, stock options, or any other form of compensation that might not be reflected in the SSA earnings report, you must submit proof of such forms of compensation if you want the VCF to consider such forms of compensation or increases in compensation in evaluating your claim.

b.  Establishing discrete past lost earnings  

In order to qualify for discrete past lost earnings (i.e., losses incurred before you filed your VCF claim or losses incurred in the absence of a third-party disability occupational disability determination), you must show that you were unable to work, or unable to work at the same level, as a result of an eligible condition and that you incurred losses as a result. You will need to submit two types of information:

• First, you need to show that you actually lost compensation. For example, an employer might provide a statement showing your compensation history and time periods where you missed work and were not compensated. If you were compensated fully through sick pay or other compensation, that means you have not “lost” compensation.
• Second, you need to show that you were unable to work, or unable to work at the same level, because of an eligible physical condition. Examples of such documentation might include a medical report explaining that you had to miss work because of your eligible condition, determinations by an insurance carrier that provided disability coverage and which specify the disabling condition, or Workers’ Compensation records.

The VCF provides a Temporary Past Lost Earnings worksheet to help support your VCF claim.  

c.  Establishing loss of future earnings/benefits as a result of permanent disability 

If you are filing on behalf of a deceased victim and you have provided sufficient evidence that the cause of death was related to an eligible condition, the VCF will generally calculate lost earnings and benefits resulting from the victim’s death if it is clear from the information in the claim file that the victim’s death resulted in a compensable loss. 

In some cases, even where the record supports the determination that the victim’s death was related to an eligible condition, it is not clear that the victim’s death resulted in a compensable loss.  For example, if the victim left the workforce more than one year before death without a permanent partial or total occupational disability determination based on an eligible 9/11-related physical health condition, the VCF will consider the reasons the victim originally left the workforce and the likelihood that the victim would have returned to the workforce were it not for the victim’s eligible condition in determining whether the victim actually lost compensation as a result of an eligible condition.  For these claims, it may be necessary to provide a disability determination or other documentation that explains the relationship between the loss of earnings and the eligible condition.  In many cases, these issues are best addressed in the context of an appeal hearing.  

Likewise, if the victim was 65 years old or older at the time of death, the VCF generally will not award lost earnings and benefits, based on the presumption that the victim had already reached the end of his or her reasonable work-life expectancy.  There are limited circumstances in which the VCF may assume that the victim would have continued working past age 65, such as where the victim was providing financial support to minor children.  In many cases, these circumstances are best addressed in the context of an appeal hearing.  

See the section below about documentation of employment-related benefits.

In addition to evidence of a compensable loss, you must submit information about collateral source payments that the VCF may be required to offset against a lost earnings award.  See the Collateral Source Offsets section for more information.

If you are filing a personal injury claim, in order to qualify for an economic loss award for loss of future earnings/benefits, you must first show that you have a permanent partial or total occupational disability based on an eligible 9/11-related physical condition. In general, the VCF will accept a determination by a governmental agency that you have a disability and will accept the governmental agency’s determination of the cause of the disability. If the governmental agency determines that the cause of disability is a condition that the VCF has found eligible, then the disability determination will provide a basis for a determination of future loss of earnings/benefits. For example, the VCF will accept disability determinations made by the Social Security Administration, the FDNY, the NYPD, NYCERS, NYSLRS, the VA, and Workers’ Compensation boards (see the sections below regarding FDNY, NYPD, NYCERS and NYSLRS, FERS, and the VA). The VCF may also accept a determination of disability made by a private insurer or a treating physician if they are sufficiently detailed as to the effect of the VCF eligible condition, distinguish those effects from those of ineligible conditions, and provide sufficient information from which the onset and severity of the disabling condition may be determined.

When considering whether the disabling condition identified in the disability determination is the same as your VCF-eligible condition, the VCF will apply the following presumptions:

• The VCF will treat all conditions in the category of Obstructive Airways Diseases (“OAD”) as equivalent. Obstructive Airways Diseases include asthma, bronchiectasis, chronic airway obstruction, chronic bronchitis, chronic obstructive pulmonary disease (“COPD”), emphysema, reactive airways disease, reactive airways dysfunction, and respiratory conditions due to fumes and vapors. The VCF will consider the SSA diagnoses of Chronic Pulmonary Insufficiency (code 4960), Chronic Respiratory Disorders (code 4960), or Other Disorders of the Respiratory System (code 5190) equivalent to the Obstructive Airways Diseases listed in this paragraph.
• The VCF will treat all conditions in the category of Interstitial Lung Diseases (“ILD”) as equivalent. Interstitial Lung Diseases include asbestosis, granulomatosis, interstitial pneumonia, pneumonitis, pulmonary fibrosis, and sarcoidosis.
• The VCF will treat all conditions in the category of Upper Respiratory Diseases (“URD”) as equivalent. Upper Respiratory Diseases are those affecting the nose, sinuses, or throat. These conditions include rhinitis, sinusitis, rhinosinusitis, tracheitis, laryngotracheitis, laryngitis, nasopharyngitis, and pharyngitis.

Thus, in each of the cases identified above, if you have been deemed disabled due to one of the listed conditions, and another condition treated as equivalent has been deemed eligible for compensation by the VCF, your disability determination supports a lost earnings award.

Note that, in all cases, even though the conditions may be treated as equivalent when deciding whether a disabling condition is the same as your eligible conditions, these conditions are NOT equivalent for the purposes of determining the appropriate non-economic loss award amount, as discussed in Section 2.1 above. Disabling conditions that fall in one category will not be deemed equivalent to conditions that fall in another category. Thus, if you are disabled due to an Interstitial Lung Disease and you have been deemed eligible by the VCF only for Obstructive Airways Diseases, the disability determination is not a basis for awarding lost earnings. Likewise, if you are disabled due to an Obstructive Airways Disease and you have been deemed eligible by the VCF only for Interstitial Lung Disease, the disability determination is not a basis for awarding lost earnings. An exception to this general rule may arise in those cases where a claimant is found disabled by the SSA due to Chronic Pulmonary Insufficiency or Chronic Respiratory Disorders and his or her only eligible condition is an Interstitial Lung Disease (e.g., sarcoidosis or pulmonary fibrosis). In such a case, if medical records submitted provide no other discernable basis for the claimant’s SSA disability, then it will be presumed that the eligible Interstitial Lung Disease is the same as the disabling condition.

It may be necessary to provide additional documentation that explains the relationship between the disability and your eligible condition(s). The VCF cannot award lost earnings for a disability that is not clearly related to an eligible condition.

If SSA or another entity found you disabled based on a condition that is not eligible for compensation by the VCF, please do not contact SSA or the other entity to request that they change your disability determination solely for the purpose of obtaining VCF compensation.  If you believe that your eligible condition has caused a loss of earnings that is distinct from any loss of earnings due to an ineligible condition, you must provide evidence to the VCF to substantiate your claim.  It is not an appropriate use of SSA’s resources to request re-evaluation for this purpose.  Moreover, the VCF will not disregard a determination that attributed your disability to an ineligible condition, even if it was later changed.  The VCF must consider evidence of an eligible disability in light of all the evidence, including an ineligible condition that is also disabling.  

In some cases, even where the record supports the determination that your disability is related to an eligible condition, it is not clear that your disability resulted in a compensable loss. For example, if you left the workforce more than one year before the onset of your eligible disability, the VCF will consider the reasons you originally left the workforce and the probability that you would have returned to the workforce were it not for your eligible condition in determining the extent of your earnings and benefits loss.  For these claims, it may be necessary to provide additional documentation that explains the relationship between your loss of earnings and benefits and your eligible condition(s). 

In addition to evidence of a disability and a compensable loss, you must submit information about collateral source payments that the VCF may be required to offset against a lost earnings award.  See the Collateral Source Offsets section for more information.

d.  Documents required to demonstrate disability  

• Social Security Administration (“SSA”) – If you have submitted Exhibit 1 of the Claim Form, the VCF will obtain certain disability information directly from the SSA. You should, however, submit any information you have about a favorable disability determination by the SSA.  In particular, if your claim was decided on appeal, please submit the narrative decision by the SSA Administrative Law Judge.

Claimants who receive disability benefits under the federal Supplemental Security Income (“SSI”) program: If you receive disability benefits under the federal Supplemental Security Income (“SSI”) program (administered by Social Security) as opposed to under the regular Social Security Disability Income (“SSDI”) program, please indicate that you are receiving SSI benefits when you file the claim and file an Exhibit 1, making sure to select the box requesting release of ”Current monthly Supplemental Security Income payment amount.”  The information that the VCF receives from the SSA will include information about SSI benefits if applicable.  Note: an SSI disability finding may support a claim of lost earnings.

• Workers’ Compensation – If you have a workers’ compensation determination from the New York State Workers’ Compensation Board (“NYWCB”), the VCF can obtain that information directly. To do so, the VCF needs the case number associated with your NYWCB claim. You should submit documents reflecting your NYWCB case number. If you have a workers’ compensation determination from another state, then you must submit complete documentation of any orders/decisions, any benefits paid, the basis for your disability, and any medical records (including treating physician records and/or independent medical examinations) that are part of your workers’ compensation record.  If you have a determination from the U.S. Department of Labor’s Office of Federal Employees’ Compensation (“FECA”) program, the VCF will obtain information about your determination directly from the Department of Labor.
• Insurer – If you have a disability determination from a private insurer, you must submit documentation from the insurer confirming the disability finding and showing that the basis for the disability was an eligible condition. You must also submit documentation of the amount and duration of benefits received, and a copy of the disability insurance policy.
• Private physician – To be considered by the VCF, an evaluation from a physician must state how long and how often the doctor has treated you and explain the examination(s) and testing done by the physician. In particular, the evaluation must include the date of onset of disability; the percentage of disability attributable to eligible conditions and/or whether the eligible conditions are independently disabling, particularly if the claimant suffers from other non-certified conditions, or mental health conditions for which the VCF cannot compensate; and explanations as to why certain test results, limitations, or the effects of the condition itself support a disability finding. These pieces of information are critical to a finding that there is a disability determination that supports a lost earnings award, and disability evaluations that do not contain these pieces of information will be rejected as insufficient.
• WTC Health Program Disability Evaluation process – The VCF has worked with the WTC Health Program to implement a disability evaluation process (“Process”), which is designed to help provide qualifying claimants with a disability determination for an eligible condition in order to support an economic loss award in a VCF claim. The Process is intended for a limited subset of WTC Health Program members who have been deemed eligible by the VCF for at least one certified physical condition, do not already have or are not eligible for a disability determination for an eligible condition from a third-party entity or source (e.g., Social Security Administration, FDNY/NYPD, a state Workers’ Compensation program, or insurance company), and meet other specific criteria for the Process. Individuals who have a disability determination based on an ineligible condition may be candidates for the Process if their eligible condition has become disabling.

If a claimant requests and is approved to enter the Process, a WTC Health Program physician will conduct a one-time disability evaluation of the claimant and prepare a disability evaluation report, which the claimant will submit with his/her claim.  The VCF will consider the WTC Health Program Disability Evaluation report in combination with the facts and circumstances of the claim to determine if a lost earnings award is appropriate.  It is important to note that receiving a WTC Health Program disability evaluation through the Process does not guarantee that you will be awarded lost earnings from the VCF.

See the WTC Health Program Disability Evaluation Process for complete details on the Process. 

Pending disability applications: What to do if you are waiting for a disability decision from a government entity or insurer.

If you are requesting economic loss but you have a disability application pending, and if your application for disability is based on a condition that is eligible for the VCF, or if you intend to file for a disability based on your VCF-eligible condition, you should wait to submit your claim until the application is decided.

If you have already filed your claim requesting economic loss, but you have a disability application pending or you are qualified to apply for disability, you should notify the VCF immediately that there is a pending disability application or that you intend to apply.  We will not process your claim until a determination on your disability application is made.  In certain, very limited circumstances – for example, if your claim qualifies for expedited processing due to terminal illness or significant financial hardship (see Section 8), and the Special Master determines it appropriate – the VCF may issue an award that deducts a presumptive offset amount assuming that your disability application was decided favorably, and you will be able to amend your claim once the disability process is concluded for any necessary correction to your award.  Please note, however, that this presumption of an offset will be used sparingly as the VCF does not want to place claimants in a position where it overpays an award and then is required to recoup funds already paid.

If you do not promptly notify the VCF of the pending disability application, and the VCF processes your claim and issues only a non-economic loss award, the claim for economic loss will be reviewed in priority order based on the date of submission of the amendment advising the VCF of the completed disability determination.  If, on the other hand, you notify the VCF of the pending disability application and the VCF defers processing your claim, your claim will be reviewed in a priority order based on the original date of submission of your compensation form once the completed disability application is submitted in a subsequent amendment.

e.  Loss of employment-related benefits  

The VCF award will include the value of lost employment-related benefits. Employment- related benefits include pension programs, retirement contribution programs, and health benefits. You will need to submit documents to show the benefits you received before the eligible injury/death and any claimed losses associated with employer-provided benefits.

Defined benefit plans

In a defined benefit pension plan, the employer or other sponsor promises to pay specific retirement benefits based on the employee's or member’s earnings history, length of service, and age. If you have a defined benefit pension that was or will be reduced because you retired early due to an eligible condition, the VCF may compensate you for that loss. To do this, the VCF needs documents describing the pension plan and how the pension would be calculated. The information that the VCF needs depends on your employer/retirement system:

See Section 2.2f for FDNY, 2.2g for NYPD, 2.2h for members of the New York City Employees Retirement System (NYCERS), 2.2i for members of the New York State and Local Retirement System (NYSLRS), 2.2j for Federal employees including the military and military reserve, 2.2k for Union/Verizon/Con Edison, and 2.2l for other employers that are not listed.

If there is an indication that you are receiving, or are entitled to receive, a disability or survivor pension (or if the decedent received a disability pension before death), but you do not submit information necessary to calculate that pension or determine the basis of that pension, the VCF will not issue a full award and may issue only a non-economic loss award or deactivate the claim because, without that information, the VCF cannot determine whether an offset is appropriate and the amount of that offset. If you have a personal injury claim and you later amend your claim and submit the information, the VCF will be able to calculate your economic loss. If you are filing a deceased claim (i.e., a claim seeking wrongful death losses because the victim died as a result of his or her eligible 9/11-related condition), and the victim received or was entitled to receive a disability pension before death, or the victim’s beneficiaries are receiving or are entitled to receive a survivor pension, you must submit that information before the VCF finalizes the substantive review of the compensation claim. 

Defined contribution plans

If your employer provided benefits such as a 401K match or other types of benefits that you would ordinarily receive at the time of retirement, you should submit proof of such benefits in order for the VCF to compute the loss. For example, you may submit a letter from your employer describing the retirement benefit or paystubs that reflect the employer’s contribution to your retirement account.

If benefits information is not provided

If you do not submit complete information about your benefits, the VCF will apply its standard default values: a 401k employer contribution equal to 4% of base salary and $2,400 per year for health insurance.  The VCF will also use the standard default values if you did not have benefits or if your benefits were less than the standard default values.

f.  Documentation to support loss of earnings and pension benefits for FDNY claimants  

For each FDNY victim who is claiming loss of future earnings and benefits and has provided the appropriate authorization, the FDNY sends the VCF the following information, which the VCF uses to calculate economic loss:

• Historical earnings:
  • This includes last 5 years’ total earnings prior to retirement, including salary, holiday pay, night shift differential pay, and overtime.
• 1/60th calculation (for those who served over 20 years)
• Total annual retirement salary (i.e., pension amount)
  • In general, this is based on the higher of Year 5 earnings or 3-year-average. If Year 5 total earnings exceed 120% of average, the pension basis will be capped at 120%.
  • For those who have been granted a WTC disability or reclassification, the pension value is 75% of the higher value, with the exception noted above.
• Type of plan (tier)
• Date of appointment
• Date of retirement

Generally speaking, because we receive this information directly from the FDNY, an FDNY victim who has been granted a disability pension does not need to submit any additional pension documentation unless the claimant asserts loss from non-FDNY employment.

Information specific to victims with an FDNY disability

The VCF does not receive medical documentation directly from FDNY.  Depending on their circumstances, FDNY victims should submit either two, three, or five documents (depending on their specific situation as explained below) to demonstrate that they have been found disabled as a result of a VCF-eligible condition or injury.

• Victims who retired on a 3/4 Accidental Disability, or an ordinary disability, based on VCF-eligible conditions and who did NOT reclassify the disability should submit the following three (3) documents:

1. The FDNY Medical Board Committee Report: This is a report from the Chief Medical Officer of the FDNY on FDNY letterhead regarding the “Result of Medical Committee,” which summarizes the FDNY member’s WTC-related exposure, medical history, diagnosis, and the Medical Board Committee’s recommendation as to the extent of the member’s disability and fitness for firefighting duty.

2. Recommendation of the FDNY Pension Fund re: Accident Disability: This is a recommendation of the 1-B Medical Board on FDNY letterhead regarding whether the individual should be awarded an accident disability retirement.

3. Letter from the Board of Trustees of the Fire Department Pension Fund Regarding Award of Accident Disability Retirement: This is a letter issued to the individual on FDNY letterhead from the Director of the Board of Trustees of the Fire Department Pension Fund regarding whether the Board approved or disapproved the victim’s application for accident disability retirement.

• Victims who retired on a 3/4 Accidental Disability and later reclassified the disability under the WTC Bill should submit five (5) documents: The three documents noted above from the original disability retirement, PLUS the 1-B Medical Board Recommendation and the Board of Trustees Letter from the reclassification proceedings.
• Victims who retired on a service pension and later reclassified to a 3/4 Accidental Disability under the WTC Bill should submit two (2) documents: The 1-B Medical Board Recommendation and the Board of Trustees Letter from the reclassification proceedings.

FDNY victims who retired on a non-WTC-related accidental pension, ordinary disability pension that is not based on VCF-eligible conditions, or service pension will not be eligible for a lost earnings award unless they can provide a disability determination from a third-party entity – such as the Social Security Administration or a treating physician – that identifies a VCF-eligible condition as a basis of the disability determination.

g.  Documentation to support loss of earnings and pension benefits for NYPD Claimants 

For each NYPD victim who is claiming loss of future earnings and benefits and has provided the appropriate authorization, the NYPD sends the VCF the following information, which the VCF uses to calculate economic loss:

• Historical earnings: this includes last 5-year total earnings and 3-year average of highest 3 of 5 years
• 1/60th calculation (for those who served over 20 years)
• Pension amount: In general, this is based on the higher of Year 5 earnings or 3-year average
• Type of retirement: WTC Accidental or Reclassification, Accidental Disability (not WTC-related), Ordinary Disability (not WTC-related), or Service Retirement
• Date of appointment
• Date of retirement and, if reclassified, date of WTC reclassification
• Basis of disability determination generally: e.g., pulmonary, GERD, cancer, orthopedic

The NYPD also sends the VCF information/documentation regarding the basis of the NYPD victim’s disability, if applicable. Specifically, the NYPD sends the VCF the underlying Medical Board Police Pension Fund Article II Reports that identify the basis of the disability determination for claimants who have retired on a WTC disability. This generally includes the final Medical Board report that identifies the final diagnosis and recommends approval of a WTC disability, as well as any prior Medical Board reports issued that address the claimant’s conditions and recommend approval, disapproval, or deferral on the claimant’s disability application. It may also include documentation that was included in the claimant’s pension file and was reviewed in the course of the disability determination process.

Generally speaking, a NYPD victim who has been granted a WTC disability pension does not need to submit any additional compensation/pension documentation unless the claimant asserts loss from non-NYPD employment.

NYPD victims who retired on a non-WTC-related accidental pension, ordinary disability pension that is  not based on VCF-eligible conditions, or service pension will not be eligible for a lost earnings award unless they can provide a disability determination from a third-party entity – such as the Social Security Administration or a treating physician – that identifies a VCF-eligible condition as a basis of the disability determination.

h.  Documentation to support loss of earnings and pension benefits for members of NYCERS and NYSLRS

The VCF will calculate pension loss for victims who worked for a New York City agency that is part of the New York City Employees’ Retirement System (“NYCERS”)(e.g., NYC Department of Sanitation, the NYC Department of Corrections, or EMS personnel employed by FDNY), and victims who worked for New York State entities that are part of the New York State and Local Retirement System (“NYSLRS”) (e.g., employees of New York State government agencies, municipalities in New York other than NYC, and other local government entities), if complete documentation is provided.  

The VCF has arrangements with NYCERS and NYSLRS, whereby these entities provide directly to the VCF the information and documentation needed to evaluate disability, lost earnings, and pension benefits for its members (living and deceased), upon receipt of a completed Exhibit B1.  You should not contact NYCERS or NYSLRS directly to obtain this information.  Doing so will unnecessarily tie up limited resources and may delay claims processing. 

Please note: For deceased victims, the VCF will submit Personal Representative’s Letters of Administration to both NYCERS and NYSLRS along with the completed Exhibit B1 form you provided with the claim.  NYCERS will only accept LOAs dated within one year of the date the VCF (or the law firm for requests already sent directly to NYCERS) sends the request for information to NYCERS.  Therefore, the VCF may ask you to obtain updated LOAs if they are older than one year at the time of our request.  Do not contact NYCERS if we ask you for updated LOAs as the one-year rule applies to all requests for documents and this will burden their limited resources and delay the process. 

i.  Documentation to support loss of earnings and benefits for Federal Employees Including Military Personnel 

Military Personnel

Note that the VCF generally will not compensate for the loss of military earnings and benefits unless you left the service due to an eligible condition.  If you were not medically discharged for an eligible condition, you should provide other evidence and explain how it establishes that the loss of your military earnings and benefits was caused by your eligible condition(s).

Compensation for military service members and uniformed service members is based on the amount of your basic pay (“BPY”), which is the largest component of military pay, plus any additional factors influencing military pay (e.g. longevity raises, overtime, bonuses, differential pay, etc.) as reflected in your taxable income reported to the Social Security Administration.  Any additional factors influencing military pay are assumed to be included in your reported military pay and will not be compensated separately.  In addition, compensation may include other military benefits or allowances if the appropriate documentation of the amount and duration of the benefits is submitted.

Individuals who submit a claim for a loss of future earnings/benefits from the Military or Military Reserve must submit documentation of the following:

• Date of initial entry to military service (“DIEMS”)
• Basic Active Service Date (“BASD”)
• Pay Date (Per Leave and Earnings Statement)
• Current grade or grade at retirement
• Type of retirement from the military (e.g. service, disability), if applicable
• Date of retirement from the military, if applicable
• Final points statement
• Most recent pay statement showing various allowances, benefits, and special pay
• If receiving military retired pay: start date and benefit amount

If you have been found partially or totally disabled by the Military, submit complete documentation of the basis of your medical retirement (e.g. Medical Evaluation Board and/or Physician Evaluation Board report).  

Veterans Administration Disability Determinations

If you have been found partially or totally disabled by the Department of Veterans Affairs (“VA”) because of your military service, notify the VCF.  We will obtain complete documentation of your service-connected disability compensation, including all rating decisions and all changes to the amount of your VA compensation, directly from the VA.  If you are receiving Combat-Related Special Compensation or Concurrent Retirement and Disability Pay, submit a complete history of the amount and duration of benefits received.

FERS and CSRS

Federal employees in the Federal Employees Retirement System (“FERS”) or Civil Service Retirement System (“CSRS”) who are claiming loss of future earnings/benefits must submit the following:

• Documentation showing the Effective Date and the victim’s final grade, step, and location – the best source of this information is the most recent SF-50 (Notification of Personnel Action) prior to retirement. The victim’s most recent Earning and Leave Statement prior to retirement may have all of this information except the Effective Date, so if that document is submitted in place of the SF-50, the claimant will need to also provide his/her Effective Date.
• SF-50 (Notification of Personnel Action) from the victim’s retirement.
• The start date and amount of the victim’s pension.
• The following information, which is used to calculate the victim’s pension. Note that this information should be in a letter that was sent to the victim at retirement or in a Federal Retirement Benefits printout:
  • Date that victim entered the FERS system (date used to calculate Creditable Service for Retirement)
  • Retirement date
  • Total years and months of credited service
  • “Average High-3 Salary”

Individuals who receive a disability pension from FERS should also submit:

• Letter from Office of Personnel Management (“OPM”) confirming that the victim’s disability retirement has been approved and stating the conditions forming the basis of the disability
• Amount of Monthly Disability Pension in first 12 months (already reduced by Social Security benefits)
• Amount of Disability Pension after 12 months (already reduced by Social Security benefits)
• Estimate of re-calculated Disability Pension at age 62

Personal Representatives filing a wrongful death claim must submit a letter from OPM confirming the following:

• Type of survivor benefit (e.g., Basic Employee Death Benefit, Survivor Annuity)
• Amount of survivor benefit

j. Documentation to support loss of earnings and pension benefits for members of a union, or employees of Con Edison or Verizon:

For union members and employees of Con Edison or Verizon, the VCF models typically include: (1) a defined benefit pension equal to 15% of base salary, and (2) an annuity equal to 7% of base salary if your union offers an annuity fund. 

If you are submitting a claim for loss of future earnings/benefits from a union, or from Con Edison or Verizon, you must submit:

• A Pension Work History or similar document from the union, showing the number of hours worked and credits earned in every year of work.
  • If you are an employee of Con Edison or Verizon, pension calculation statements from Con Edison or Verizon
• A letter from the union/Con Edison/Verizon stating the following:
  • The type of pension you are receiving (e.g. service, disability)
  • The start date of the pension
  • The monthly amount of your pension
  • If you are receiving a lump sum pension, the amount of the lump sum pension.
• If you are not receiving a pension, submit a letter from your union/Con Edison/Verizon stating that you are not receiving a pension.  
• Personal representatives must submit the following:
  • A letter from the union/Con Edison/Verizon stating the monthly (or lump sum) amount of your survivor pension.
  • The type of survivor option selected (e.g., 100% joint and survivor).

k. Documentation to support loss of earnings and pension benefits for other employers not listed above:

If your employer is not listed above but offers a defined benefit pension, you must submit evidence that your employer offers a defined benefit pension and how that pension was calculated, such as a pension calculation statement, retirement statement, or a pension option letter.

If you are receiving a pension (either directly or as a beneficiary of a decedent), you will be required to submit:

• The start date of the pension
• The amount of the pension
• The type of pension (e.g., ordinary, service, disability, etc.)
• If you receive a disability pension, documents showing the injuries or conditions that the pension is based upon

2.3  Detailed Explanation of Methodology used to Calculate Future Lost Earnings  

In general, the VCF will use the following procedures and assumptions for determining future lost earnings for both deceased and injured victims:

1. Age, start of loss and compensable income: Establish the victim’s age and compensable income at death or at the time the victim was determined to be unable to work by a governmental entity, or had to reduce work, and suffered a loss of income as a result of eligible conditions. The start of loss date is typically the onset date of disability.  There are some cases, however, where a victim continued to earn income at the same level after s/he was determined to be disabled by a governmental entity.  In those cases, the VCF may use the later date – that is, the date when the victim actually suffered a loss in earnings. 

Income will be determined based on the documents submitted with the claim and on data obtained from SSA earnings reports. Generally, the Special Master will consider the three calendar years of employment history before the decrease in the victim’s earnings capacity as a result of the victim’s disability due to the eligible conditions or the victim’s death, but the Special Master also may consider other factors or other years or combinations of years in evaluating the claim. Where there is a finding of partial disability or if there are multiple disability determinations, some for eligible conditions and some for ineligible conditions, the VCF will compute the percentage of income “lost” based on the percentage of disability attributable to eligible conditions. In some cases, the VCF will apply a computation of future residual earnings for individuals who are disabled from a specific job but who are otherwise able to perform a different occupation.  In general, the standard amount used to calculate future residual earnings capacity is the minimum wage applicable to large employers in New York City ($31,200 in 2018). The VCF will also consider when and how a claimant left the workforce, particularly if the claimant stopped working before the disability onset date identified in the disability determination.

 

2. After-tax income: Determine after-tax compensable income by applying the average effective combined federal, state, and local income tax rate for the victim’s income bracket currently applicable in the state of the victim’s domicile for tax purposes. The Special Master uses effective income tax rates derived from published Internal Revenue Service (“IRS”) data on selected income and tax items for Individual Income Tax Returns by State.[2] Effective income tax rates derived from IRS data for New York are shown in Table 1 below.

4. Work-life expectancy: Determine a measure of the victim’s expected remaining years of workforce participation using the tabulated work-life expectancies for the victim’s age at the time of death or at the time the victim was unable to work, or had to reduce work, as a result of eligible conditions contained in the publication, Gary R. Skoog, James E. Ciecka, Kurt V. Krueger, “The Markov Model of Labor Force Activity 2012-17: Extended Tables of Central Tendency, Shape, Percentile Points, and Bootstrap Standard Errors,” Journal of Forensic Economics, Volume 28, Issue 1 (2019), pp. 15-108. These are generally accepted tables of work-life expectancy regarding the general population.

Work-life expectancies are based on actual experiences and behavior of the general population and measure the estimated time in years an individual of a given age will remain in the labor force (either employed or actively seeking work), allowing for age-specific mortality risks and rates of workforce transitions. The Special Master will use the expected work-life for active males, with a full-time beginning labor force state, to compute expected remaining years of workforce participation for both male and female victims. The work-life expectancies are shown in Table 2 below. Because published estimated work-life expectancies by gender are lower for women than men, this specification increases the duration of estimated foregone earnings, and thus presumed economic losses, for female victims and was implemented by the Special Master to accommodate for potential increases in labor force participation rates of women.

As a matter of general policy, the VCF will not award lost earnings if the victim was 65 years old or older at the time of disability or death based upon the presumption that the victim had reached his or her reasonable work-life expectancy.  Exceptions may be considered if the victim (or his or her authorized representative) submits evidence to support the assumption of additional years of workforce participation after age 65, such as the victim’s need to support minor children.  In many cases, these issues are best addressed in the context of an appeal hearing.   

 

5. Growth rates: The VCF projects compensable income and benefits through the victim’s expected work-life using growth rates that incorporate an annual inflationary or cost-of-living component, an annual real overall productivity or scale adjustment in excess of inflation, and an annual real life-cycle or age-specific increase derived using data on average full-time year-round earnings by age bracket from the 2010 Current Population Survey (“CPS”), a monthly survey of households conducted by the Bureau of the Census for the Bureau of Labor Statistics. This survey is widely recognized as a primary source of data on employment status and workforce characteristics of the civilian non-institutional population ages 16 years and older. Because age-specific observed life-cycle increases for all males were higher than observed life-cycle increases for both men and women combined, the Special Master elected to incorporate the life-cycle increases for males into earnings growth for all victims, both male and female.

Independent of life-cycle increases, inflation and real overall productivity increases of 2% and 1%, respectively, are applied each year. These rates of increase are consistent with the long- term relationship between economy-wide wage growth and risk-free interest rates, which currently reflect lowered inflationary expectations. A schedule containing age-specific earnings growth rates reflecting the combined inflation, overall productivity, and life-cycle increases is shown in Table 3 below. The Special Master has determined that individual age-specific growth rates, rather than growth independent of a particular age bracket at death, better reflects the expected pattern of earnings over one’s career[3] and results in more equitable and consistent projections for victims close to each other in age with otherwise similar family and employment characteristics.

6. Risk of unemployment: To better reflect contingencies that the victims would have faced, all projected earnings and fringe benefits (assumed to be received during projected employment and until work-life expectancy) amounts will be adjusted for a factor to account for the risk of unemployment as lifetime jobs are not representative of the modern economy. This adjustment is made because work-life expectancies are based on years of expected workforce participation, which, as defined by the Bureau of Labor Statistics, include periods an individual is either working or seeking work. Historical unemployment rates were examined and a reduction factor of 6% is applied to presumed earnings and fringe benefits to account for this risk[4].

 

In determining household size for claims for decedents, the Special Master will assume that children will remain in the household through age 23. Consumption rates calculated using alternative techniques were considered but found to produce higher personal consumption rates and were not ultimately used to determine the decedent’s household consumption adjustment.[7] Although the consumption rates determined from BLS data actually represent household expenditures as a percent of before-tax household income, the actual consumption reduction used to determine the decedent’s personal expenditures was calculated as a percent of lower after-tax income, which significantly lowers the resulting adjustment. In addition, the victim’s consumption is determined as a share of the victim’s own earnings only, rather than the standard share of total household earnings. This further lessens the resulting subtraction, compared to personal consumption rates typically applied in litigation, if there are other earners in the household.

 

10. Assumptions: The computation methodology adopts a number of assumptions implemented to facilitate analysis on a large scale. When viewed in total, these assumptions are designed to benefit the victim and are more favorable than the standard assumptions typically applied in litigation. For example, the Special Master considered that over the course of their projected careers, younger victims could expect to cross into higher income brackets, and be subject to corresponding higher income tax rates, on account of experience-based real lifetime earnings growth in excess of economy-wide national wage increases. To calculate economic losses, however, whatever income tax rate corresponded to the victim’s determined compensable income bracket as of the date of death, or time the victim was unable to work or had to reduce work as a result of eligible conditions, was assumed to apply for the remainder of the victim’s career, without increase. Likewise, the calculations of economic losses also assume that the personal consumption percentage corresponding to the victim’s determined compensable income bracket as of the date of death, or time the victim was unable to work or had to reduce work as a result of eligible conditions, applies for the remainder of the victim’s career, without decrease. It was determined that the net effect of these and other facilitating assumptions was to increase the potential amount of presumed economic loss to the benefit of the victim.

 

2.3.1 Compensation for VCF1 Claimants Who Were Paid in VCF1

If you received an award in VCF1, you can amend your claim and qualify for additional compensation if:

a. Your VCF1-eligible injury or condition has substantially worsened;

OR

b. You have a new physical injury or condition that you had not suffered at the time of the VCF1 claim filing or that was not compensable at the time of VCF1;

        AND

c. You have not already been fully compensated for your losses. 

When evaluating whether additional compensation should be awarded, the VCF considers the types of conditions compensated, the type, nature, and amount of compensation awarded, and the basis and timing of any lost earnings awarded in VCF1.  A claimant will be considered to have been fully compensated if the compensation s/he received in VCF1 exceeds the amount of compensation s/he is eligible to receive in VCF2 based on his/her eligible conditions and the circumstances of the claim.  For that reason, even if a claimant’s eligible condition has worsened since VCF1, s/he may not qualify for additional losses.  Moreover, the VCF will not reconsider or recalculate any component of the VCF1 award or change any assumptions made in the VCF1 calculation.  Below are some illustrative examples of how VCF1 awards are considered:

• If you received $125,000 of non-economic loss in VCF1 for asthma, and you amend in VCF2 for additional non-economic loss for newly certified interstitial lung disease and emphysema that have progressively worsened, the VCF will consider you to be fully compensated for your eligible conditions and will not award additional non-economic loss.  The VCF is required to consider your non-economic loss in the context of the current statutory caps.  Because your VCF1 non-economic loss exceeds the maximum amount allowed by law for those conditions ($90,000), no additional losses will be awarded.  
• If you were found to be partially disabled due to an eligible condition in VCF1 based on an FDNY disability determination, and the Social Security Administration subsequently determined that you became fully disabled due to the same condition after your VCF1 award was issued, you may be eligible for additional compensation.  The VCF considers the fact that you became more (fully) disabled after your VCF1 award was issued as evidence that your same, eligible condition has worsened and that you suffered losses that were not previously fully  compensated.  Note that proof of exacerbation is required to support an additional award for economic loss in VCF2 if economic loss was awarded in VCF1.  Thus, a determination by SSA that you were already fully disabled at the time that the VCF1 award was issued will not support additional loss, even if the SSA does not make that determination until after your VCF1 award was issued, and even if the VCF1 did not consider you to be fully disabled, because that new determination does not establish that your disability has actually worsened since the time VCF1 considered your conditions. 

 

2.4 Other Types of Economic Loss  

a.  Past out-of-pocket medical expenses   

As part of the economic loss component of your claim, you can request reimbursement for past out-of-pocket medical expenses you have paid as a result of your eligible condition(s).  Your claim for reimbursement of past out-of-pocket medical expenses will only be considered if the criteria outlined below are met:

• The expenses were paid prior to the date the WTC Health Program certified the applicable condition as eligible for treatment (“applicable condition” refers to the specific condition for which the expenses were incurred).  Because you are eligible for treatment and medications once your condition is certified, the VCF will not reimburse for expenses you incur after your condition is certified if you decide to be treated by a non-WTC Health Program physician, or to have your prescriptions filled by an unaffiliated pharmacy. 
• The total amount of the claimed medical expenses incurred due to eligible conditions exceeds $5,000.
• The expenses are acceptable expenses as outlined in Acceptable Medical Expenses Claims below.
• The claim is submitted with the required documentation and in the required format, as explained in Documentation Required to Support a Medical Expenses Claim below.

The Special Master may exercise discretion to waive one or more of these requirements as appropriate based on individual claimant circumstances. If you wish to seek a waiver, please contact the VCF Helpline.

Because claims for reimbursement of out-of-pocket medical expenses require the submission and review of significant documentation establishing that the claimed medical expense was related to your eligible condition, that you personally paid for the expense out of pocket, and that the expense was incurred prior to your WTC Health Program certification for the applicable condition, processing these claims takes time and can delay your award. As a result, the VCF has established specific criteria about when and how you should submit your claim for medical expenses.  Please review the details below specific to personal injury and deceased claims. 

 

When to File a Medical Expenses Claim 

• Personal Injury Claims: Claims for medical expenses must be submitted as a compensation amendment to your claim only after you have received your initial award determination. This allows the VCF to issue your initial award determination more quickly, since we are not spending time during our initial review to verify each claimed medical expense.  You may also amend your claim to seek reimbursement for medical expenses after receiving a revised award decision. Instructions for how to amend your claim can be found under “Forms and Resources."

The amendment may be filed at any time following receipt of your initial award determination, but no later than October 1, 2090.

 

• Deceased Claims: Claims for medical expenses must be submitted as part of your initial claim.  This is because for deceased claims, the expenses should be known at the time the claim is filed as they were incurred prior to the victim’s death.  In addition, you generally will not be permitted to amend your claim after the VCF finalizes substantive review of the compensation claim.  See Section 5 for details about amendments.

 

• Pending Claims and Amendments:

Personal Injury Claims: If you have already filed a claim for medical expenses as part of your personal injury claim form submission, the VCF will not review the expenses as part of our initial review of your claim.

Once you receive your award determination, you will need to determine if the out-of-pocket medical expenses you incurred meet the $5,000 minimum threshold and other criteria noted above and are acceptable expenses as described in Acceptable Medical Expenses Claims below.  You are not required to amend your claim if you decide you no longer want to seek reimbursement for medical expenses.  If the paid medical expenses you incurred meet the VCF criteria, and you want to seek reimbursement of the expenses, you must submit an amendment to reactivate your request. You do not need to resubmit documents in support of your medical expenses claim if you already submitted them with your claim form, although you may submit additional documentation. You must be certain any documentation you provide meets the requirements outlined in Documentation Required to Support a Medical Expenses Claim below.

If you have already filed an amendment to seek medical expenses reimbursement, the VCF will review the expenses as part of our review of your amendment, provided the expenses meet the established criteria.  You do not need to resubmit documents you have already submitted in support of your amendment, but you must be certain the documentation you provided meets the requirements outlined in Documentation Required to Support a Medical Expenses Claim below.

Deceased Claims: If you filed an amendment for medical expenses on a deceased claim on or before December 18, 2020 we will review the amendment, and will consider reimbursement for medical expenses subject to the other requirements discussed in this document.  In addition, if you filed your initial claim before December 18, 2020, and you did not claim medical expenses in your initial claim, you may file an amendment for medical expenses, and we will consider it, subject to the other requirements discussed in this document.  As explained in Section 5, amendments on deceased claims are not otherwise permitted.

 

Acceptable Medical Expenses Claims

Types of Expenses Covered 

Under the VCF Act, the VCF does not compensate for potential or anticipated future medical expenses.

Compensable expenses include costs you have paid out-of-pocket for prescription medication, prescribed medical equipment, doctor visits, diagnostic tests, surgeries, or other medical procedures relating to your eligible condition(s). The VCF will not compensate for any travel expenses you incurred while seeking medical treatment, including the cost of gas, public transportation, hotels, and meals, except in extraordinary circumstances.  Other expenses that are not eligible for reimbursement include insurance premiums, expenses related to replacement services, investigational and holistic treatment, home health care or in-home aides, nursing home/live-in rehabilitation facilities, wigs, household items such as vacuum cleaners, air filters, and water filters, or home modifications.

Only expenses that you have paid out-of-pocket, and that were incurred prior to WTC Health Program certification of the applicable condition, will be reimbursed. Compensable expenses do not include any costs for which you have been, or will be, reimbursed by your insurance company, a secondary payer (like Medicaid, Medicare, or a second insurance provider), or any other collateral source.

• If you have insurance, the VCF will not compensate for any expenses that have not yet been evaluated by your insurance company or any applicable secondary payer.
• If the service or medication is provided to you by the WTC Health Program, it is not eligible for reimbursement from the VCF and you should not include it with your claim.
• Treatment expenses covered by private health insurance, Workers’ Compensation, or other programs will not be reimbursed. If you receive a benefit intended to cover medical expenses from a workers’ compensation program or any other collateral source, please include information regarding that payment, so that it can be appropriately offset from your medical expenses award.
• Treatment expenses billed to you as a co-payment, after denial of insurance coverage, or that you pay because they fall within your insurance deductible, may be reimbursed if appropriate documentation is submitted.

Timing of Reimbursable Expenses 

Under the VCF Act, the VCF does not compensate for potential or anticipated future medical expenses.  The VCF will consider reimbursement of out-of-pocket medical expenses that you incurred up until the date of certification of the applicable condition(s).  Expenses you incurred after the date of certification are not eligible for reimbursement.  If you are claiming reimbursement for expenses relating to conditions that are not certified, we will consider reimbursement for expenses you incurred at any time before you filed your medical expenses claim, subject to the specific circumstances of your individual claim. 

If you are claiming medical expenses relating to conditions with different certification dates, you can claim reimbursement for applicable expenses up to the certification date for each individual condition.

If you have already filed a claim for reimbursement of expenses that you incurred after your certification date for the applicable condition, the VCF will not reimburse for these expenses. We will still review your claim to see if it includes reimbursable expenses that you incurred before the applicable condition was certified.

The Minimum Monetary Threshold 

The VCF will consider claims for medical expenses only if the total amount legitimately claimed in your amendment exceeds $5,000. The “total amount legitimately claimed” means that the claimed expenses are reasonably related to your eligible conditions (as identified in your most recent eligibility determination letter) and that you have documentation demonstrating that you paid the expense out-of-pocket.

 

Documentation Required to Support a Medical Expenses Claim 

If your medical expenses claim does not meet the documentation requirements described in this section, the VCF reserves the right to deny the claim.  For the VCF to consider your claim for medical expenses, you must submit the following documents in support of your claim:

• VCF Medical Expense Worksheet  The worksheet must be completed following the specific instructions provided with the Worksheet; and
• A Medical Expense Supporting Documentation Packet that verifies: (a) the relationship of each claimed expense to one of your eligible conditions; and (b) the amount of each claimed expense that you have paid out-of-pocket.  For each discrete medical expense entered on the Medical Expense Worksheet, the Supporting Documentation Packet must include the following:

(1) A document that demonstrates that the expense is related to one of your eligible conditions as explained below, unless the expense is on the list of Presumptively Compensable Expenses (see Table 6 below); and

(2) A document that demonstrates the amount of the expense that you have paid out- of-pocket, as explained below.

When uploading the Supporting Documentation Packet to your claim, select the document type “Medical Expense Supporting Documentation Packet.”  If you fail to include the required supporting documentation, your claim for medical expenses will be denied.

If the VCF, with reasonable effort, cannot clearly identify the required documentation necessary to support each claimed medical expense, the VCF reserves the right to deny your medical expenses claim.

 

 

Table 6: Presumptively Compensable Expenses

This chart may change over time.  Please be sure to refer to the most recent chart prior to filing your amendment for medical expenses.

Condition Category	Includes	Presumptively Compensable Medications (generic name is listed first, followed by brand name)	Presumptively Compensable Procedures
Obstructive Airway Disease	Asthma Bronchiectasis Chronic airway obstruction Chronic bronchitis Chronic obstructive pulmonary disease (COPD) Emphysema Reactive airways disease Reactive airways dysfunction Respiratory conditions due to fumes and vapors	Albuterol (ProAir, Proventil, Ventolin) Atrovent (ipratropium) Beclomethasone (Qvar) Benzonatate (Tessalon Perles) Budesonide (Pulmicort, Symbicort) Ciclesonide (Alvesco) Fluticasone propionate (Advair, Flovent) Formoterol (Dulera, Foradil, Symbicort) Ipratropium (Atrovent) Levalbuterol (Xopenex) Metaproterenol (Alupent) Mometasone (Asmanex, Dulera) Montelukast (Singulair) N-acetylcysteine (Mucomyst Oxygen Pirbuterol (Maxair) Salmeterol (Advair, Serevent) Terbutaline (Brethine) Tiotropium (Spiriva) Zafirlukast (Accolate) Zileuton (Zyflo) Expectorants All Brochodilators Antibiotics Oral corticosteroids	Bronchoscopy CAT Scan Chest/Thorax (CT)(CT Scan) PET Scan Chest/Thorax Chest X-ray (CXR) MRI Chest Pathology – lung specimens Sputum Cultures Thoracoscopy/ Thoracotomy Video-Assisted Thoracotomy (VAT) Wedge resection of the lung Lung transplantation
Interstitial Lung Disease	Asbestosis Granulomatosis Interstitial pneumonia Pneumonitis Pulmonary fibrosis Sarcoidosis Pneumoconioses	Azathioprine (AZA, Imuran) Cyclophosphamide (Cytoxan) Cyclosporine (Restasis, Sandimmune, Neoral, Gengraf, Apo- Cyclosporine) Methotrexate (Trexall, Rheeumatrex, Rasuvo, Otrexup) N-acetylcysteine (Mucomyst) Guaifenesin (Mucinex) Oxygen Oral corticosteroids Antibiotics Expectorants	Bronchoscopy CAT Scan Chest/Thorax (CT)(CT Scan) Chest X-ray (CXR) PET Scan Chest/Thorax MRI Chest Pathology – lung specimens Sputum Cultures Thoracoscopy/ Thoracotomy Video-Assisted Thoracotomy (VAT) Wedge resection of the lung Lung transplantation
Gastroesophageal Reflux		Esomeprazole (Nexium) Famotidine (Pepcid) Lansoprazole (Prevacid) Omeprazole (Prilosec) Pantoprazole (Protonix) Ranitidine (Zantac) Proton pump inhibitors	Barium Swallow Esophagogastroduodenosc opy (EGD) Laryngopharyngeal Endoscopy Pathology – Esophagus, gastric, duodenum specimens Upper GI Series
Upper Respiratory Disease	Rhinitis Sinusitis Rhinosinusitis Tracheitis Laryngotracheitis Laryngitis Nasopharyngitis Pharyngitis	Azelastine (Astelin, Astepro) Budesonide (Rhinocort) Fluticasone propionate (Flonase) Ipratropium bromide (Atrovent) Mometasone (Nasonex, Asmanex) Oxymetazoline (Afrin) Oral corticosteroids Antibiotics Decongestants	CAT Scan Head/Sinuses PET Scan sinuses Endoscopy of Nasal and Sinus Cavities Laryngopharyngeal Endoscopy Pathology – Nasal and Sinus specimens Septoplasty Cultures - Nasal, Mastoid, Sputum
Prostate Cancer		Erectile Dysfunction: Sildenafil (Viagra) Tadalafil (Cialis) Urinary Incontinence: Tamsulosin (Flomax) Oxybutynin (Ditropan XL) Tolterodine (Detrol) Darifenacin (Enablex) Fesoterodine (Toviaz) Solifenacin (Vesicare) Trospium (Sanctura) Mirabegron (Myrbetriq) Chemotherapy: Docetaxel(Taxotere) Cabazitaxel(Jevtana) Mitoxantrone(Novantrone) Estramustine (Emcyt) Immunotherapy: Pembrolizumab (Keytruda) Provenge vaccine	MRI prostate Prostate Biopsy Radical Prostatectomy Radiation Seed Implants External beam radiation Cryotherapy ( also known as cryoabalation, cryosurgery) Orchiectomy (for hormone suppression) PSA levels (for active surveillance)

 

b.  Replacement Services Loss 

In a deceased claim, where the victim died as a result of a VCF-eligible condition, if the victim regularly performed general household-related tasks, then the VCF may provide compensation for the value of those “services.” This component of economic loss is called “replacement services loss” and is typically considered to be a component of loss only in deceased claims.  The VCF may also, in an appropriate case, make a replacement services award in a personal injury claim where the claimant did not have prior earned income or worked only part-time outside the home. Examples of the types of tasks that are considered for “replacement services” compensation are services that the victim provided to the family, such as cleaning, cooking, child care, home maintenance and repairs, and financial services. Replacement services loss is intended to replace something that was lost – that is, something the victim used to do. In order to be compensated for replacement services, the Personal Representative seeking compensation on the claim must demonstrate that the victim performed prior to his or her death from the eligible condition. If the victim is deceased, you should provide a clear statement of the services provided before the onset of the eligible condition and/or death from the eligible condition. If services are no longer relevant, they will not be compensated (for example, child care services will not be compensated after the child reaches age 18).

If seeking replacement services loss in the rare personal injury claim where it might be warranted, you must provide a statement describing the types of services you provided before your eligible condition hampered you from doing so, the amount of time spent on those services (per week or month), and the amount of time you are able to spend on those services now (i.e., with the eligible condition). You must also submit medical records that show that the reason you cannot perform the services is because of the eligible condition. You must complete and submit a Social Security Administration Consent Form (Exhibit 1 of the Claim Form) even if Replacement Services is the only type of loss you are claiming.  This allows the VCF to obtain information from the Social Security Administration to determine earnings history. 

 

c.  Burial or Memorial Service Expenses   

The VCF will compensate for documented out-of-pocket burial or memorial expenses for victims who died as a result of an eligible 9/11-related physical injury. You must submit any claim for burial or memorial service costs with the initial claim submission.  The VCF will calculate such loss on a case-by-case basis using documentation submitted by the Personal Representative. If any part of these expenses was covered by life insurance or another source, you must provide documentation of that coverage. The VCF will not reimburse expenses that were covered by another entity, and will only reimburse that portion of the expenses that is directly related to the death of the victim or to memorializing his or her passing.

 

2.5  Collateral Source Offsets  

The VCF is required by the VCF Act to offset (that is, subtract) from the calculated loss the amount of compensation that you have received, or are entitled to receive, from certain collateral sources as a result of the injury that is eligible for compensation.  This includes compensation paid to your dependents or to the beneficiaries of a deceased victim as a result of the eligible injury, such as benefits that the Social Security Administration pays to dependents of a disabled or deceased wage earner.  Collateral sources may include life insurance, pension funds, death benefit programs, settlement payments from September 11th-related lawsuits, and payments by federal, state, or local governments related to the terrorist-related aircraft crashes of September 11, 2001, or debris removal in the immediate aftermath. For example, the VCF will deduct from the award the amount that an FDNY victim receives under a WTC disability pension provided that the disability pension is for an eligible condition.

Some categories of offsets apply only to certain categories of loss.   See Table 7: Which Offsets Apply to Which Types of Loss.  For example, the VCF will deduct from a lost earnings award the amount that an FDNY victim receives under a WTC disability pension provided that the disability pension is for an eligible condition, but will not deduct a disability pension from the non-economic loss award.  We urge you (and your attorney, when applicable) to consider the collateral offsets that may be applicable to your claim before submission, and consider submitting a non-economic loss only claim in those cases where your earnings-related offsets are likely to exceed your economic loss.  By doing this analysis before submitting your claim, the VCF will be able to more quickly process your claim because we do not need to take the time to calculate the economic loss in order to determine that only non-economic loss can be awarded.

The Special Master will exercise discretion in valuing the appropriate deductions for collateral offsets by determining the following:

• Whether the particular offsets fall within the definition of collateral sources;
• Whether particular offsets should apply to all or some categories of loss (for example, certain disability benefits are offset only against lost earnings; see Table 7: Which Offsets Apply to Which Types of Loss);
• Whether the collateral source compensation is certain or can be computed with sufficient certainty to enable its offset while ensuring that beneficiaries receive the full amount of compensation that is appropriate; and
• The appropriate amount of the compensation that should be offset, taking into account the time value of money and contributions made by the injured victim or decedent in the nature of investment or savings.

While it is not possible to define in advance every possible collateral source deduction, the following general illustrations should provide guidance:

• The Special Master has the discretion to exclude from consideration life insurance proceeds that are distributed to persons other than the beneficiaries of the VCF award.
• The Special Master has the discretion to adjust the amount of offsets to exclude premiums or assets that were accumulated by the victim through self-contributions paid into a life insurance program to build up a tax-deferred cash value.
• The Special Master may reduce the amount of the offset for a pension to take account of self-contributions to that plan over the injured victim’s or decedent’s lifetime.
• The collateral source offsets will not include monies or other investments in the injured victim’s or decedent’s 401(k) accounts.
• The Special Master is required under the VCF Act to offset Social Security survivor and dependent benefits as compensation paid to the surviving spouse or dependents of a disabled or deceased wage earner because of the eligible injury.  For this reason, if any spouse or dependent (e.g., a minor or disabled child or an elderly parent) of the deceased victim is receiving these benefits, you must submit a separate Social Security Administration Consent Form (Exhibit 1 of the Claim Form) for the surviving spouse and/or dependents when submitting the claim.  Please do not submit another copy of the Exhibit 1 for the victim.  The VCF will then obtain information regarding the benefits directly from the SSA.

The following are NOT considered collateral offsets:

• Charitable gifts - the final regulations clarify that benefits from charities (privately-funded charitable entities) disbursing private donations will not be treated as collateral source compensation, even if such charities were created or managed by governmental entities.
• Tax benefits received from the Federal Government as a result of the enactment of the Victims of Terrorism Tax Relief Act of 2001 (Pub. Law No. 107).
• Payments made by the various State Victim of Crime Boards funded with federal funds.
• The cost NIOSH incurs in reimbursing treatment under the WTC Health Program.
• Deferred or vested compensation from employment. Compensation that would have been payable upon retirement or death regardless of when or why the victim retired or died is not payable “as a result of the terrorist-related aircraft crashes of September 11, 2001,” and therefore is not collateral source compensation.  Thus, if you retired on a disability pension due to an eligible condition, the VCF will only offset that pension to the extent it is greater than the amount you were entitled to receive as a service pension. Likewise, in a wrongful death claim, the VCF will only offset a survivor pension to the extent it is greater than the pension the victim was otherwise entitled to receive.  

 

Table 7: Which Offsets Apply to Which Losses

The Special Master has discretion to determine which offsets should be applied to which losses. It is not possible to define and categorize in advance every possible collateral source deduction.

Collateral sources	Offsets Applied to Personal Injury Losses (including losses before death when the victim is deceased)				Offsets Applied to Wrongful Death Losses				Offsets Applied to the Total Award (PI and WD)
	Non-economic Loss	Medical Expenses	Replacement Services	Lost Earnings	Non-economic Loss	Burial Expenses	Replacement Services	Lost Earnings
Lawsuit Settlements	X	X	X	X	X	X	X	X	X
PSOB or USVSST Awards (for Death or Disability)	X	X	X	X	X	X	X	X	X
Payment on prior PI claim	X	X	X	X	X	X	X	X	X
Disability Benefits SSA Workers’ Comp Disability pension Private long- or short-term disability insurance Dependent benefits for Claimant’s disability				X
Life insurance					X	X	X	X
SSA death benefit of $255					X	X	X	X
SSA survivor benefits for dependents								X
Workers’ Compensation death benefits								X
Survivor Pension								X

 

a.  Collateral offsets that are paid periodically   

The Special Master will only offset the present value of collateral source compensation. This has the effect of decreasing offsets and, thus, increasing the amount of VCF awards. As an example, in the case of Social Security children’s benefits, the Special Master will determine the monthly benefit to the child, multiply that benefit by the number of months remaining until the child reaches age 18 (taking into account possible limits such as maximum family benefits available), include — if consistent with Social Security guidelines — a factor for inflation, and then discount the total to present value to determine the amount of the offset.

 

b.  Benefits that may be subject to liens  

Some Workers’ Compensation laws, both domestic and foreign, contain provisions that would allow the insurance carrier to assert a lien against an award issued from the VCF. For those who receive Workers’ Compensation benefits from New York State, New York amended its Workers’ Compensation statute in 2002 to prohibit insurance carriers from asserting liens against awards from the VCF. Specifically, the NY Workers’ Compensation law, Section 29(1-b) provides as follows:

“1-b. Notwithstanding any other provision of this chapter to the contrary, the state insurance fund, if compensation and/or medical benefits be payable therefrom, or otherwise the person, association, corporation, insurance carrier or statutory fund liable for the payment of such compensation and/or medical benefits: (a) shall not have a lien on the proceeds of any award from the September eleventh victim compensation fund of two thousand one established pursuant to title IV of the federal air transportation safety and system stabilization act, public law 107-42, as amended; and (b) shall not terminate or reduce such compensation and/or medical benefits based upon the submission of a claim for an award from such federal fund, and/or the waiver or compromise of any cause of action resulting from such submission.”

As a result of this amendment, if a victim or family member of a decedent has received, or is entitled to receive, payments from the New York State Workers’ Compensation Board related to an eligible condition, in general, the VCF will offset those payments.

Other state Workers’ Compensation programs have not enacted similar legislation. Thus, there is a possibility in those states that payments to a victim or family member of a decedent might ultimately be subject to repayment from the VCF award. The VCF will review these benefits on a case-by-case basis. If you know that payments or benefits you have received are subject to a lien, you must notify the VCF. If you do not notify the VCF, we will assume that there are no liens.

Similarly, payments from other government or private entities that are subject to liens may not be offset from the VCF award if sufficient evidence of the lien is submitted. The VCF will evaluate these types of payments on a case-by-case basis.

 

c.   Survivor benefits subject to adjustment or termination 

Some survivors may be eligible for benefits or payments from certain programs that provide periodic payments subject to adjustment or termination depending on potential future events. Such payments will be assumed to continue and will be offset unless evidence is submitted that the benefits or payments in fact terminated.

Thus, for example, the Special Master has determined that Workers’ Compensation benefits that are payable only if the spouse does not remarry will be offset throughout the period of compensated loss unless evidence is submitted that the spouse in fact remarried and the benefits in fact terminated. Likewise, Social Security and similar benefits payable to a surviving spouse only if the spouse does not remarry or does not earn income above a certain threshold will be offset absent evidence that they have terminated. 

Where survivor benefits being paid to a disabled child may continue after age 18 but are subject to evaluation for continuing disability, the Special Master has discretion not to deduct them to extent they cannot be determined with reasonable certainty.

After your award is received, any changes in entitlement to survivor benefits, such as a determination of continuing disability at age 18, should be reported on the “Collateral Offset Update Form.”

 

d.  Public Safety Officers' Benefits ("PSOB")   

Congress amended the Public Safety Officers’ Benefits Act (42 U.S.C. § 3796) to provide that the benefits paid under the Act “shall be in addition to any other benefit that may be due from any other source, except . . . payments under the September 11th Victim Compensation Fund of 2001 . . .” Therefore, if PSOB has paid a benefit to the eligible victim, then the VCF will offset this amount.  As shown in Table 7 on page 55, PSOB benefits are offset against the total award, including non-economic loss, whether they were awarded for death or disability.

If you have applied or plan to apply to PSOB Programs for a September 11th-related injury, you should note the PSOB application in the Collateral Offsets section of the claim form.

The VCF has an arrangement with the PSOB program to exchange information regarding the status of any claim, the amount of any award determination and payment, and the basis of the award determination. It may facilitate the processing of your claim, however, if you submit to the VCF any determination you have received from the PSOB program, or documentation of a payment from the PSOB program, when you submit your claim.

 

e.   WTC Volunteer Fund administered by the New York State Workers' Compensation Board  

If an individual is eligible for VCF compensation and is also receiving payments from the WTC Volunteer Fund, the VCF will offset certain payments made by the WTC Volunteer Fund.

While unpaid volunteers are normally ineligible for Workers' Compensation benefits, the New York Workers' Compensation Law was amended to provide a unique exception for certain volunteers who assisted with World Trade Center rescue, recovery, and clean-up efforts. WTC volunteers are eligible to receive benefits through the WTC Volunteer Fund, which is administered by the Workers' Compensation Board. The WTC Volunteer Fund provides medical and indemnity (cash) payments for volunteers who are disabled as a result of their efforts.

The Federal government originally provided funding for this program, but the $50 million congressional appropriation ($25 million in 2002, increased to $50 million in 2005) was exhausted in early 2016. An additional $9 million was provided by the State of New York in 2016. In the event these funds are also exhausted, the NY Workers’ Compensation Law now provides that WTC volunteers may receive benefits directly from the Uninsured Employers Fund, which is funded by fines paid by employers who do not comply with insurance coverage requirements.

Before these legal alterations were made in the program, it was the VCF’s policy to offset only those WTC Volunteer Fund payments that a claimant had received as of the date his/her claim was filed because any future payments were considered to be uncertain and contingent on an additional infusion of funds and on the identification of a continuing funding mechanism. Given the statutorily designated backstop through the Uninsured Employers Fund, future funding for the WTC Volunteer Fund is now certain. As a result, and consistent with the statute and regulations governing the VCF, the VCF will offset any indemnity benefits a VCF claimant receives, or is entitled to receive in the future, from the WTC Volunteer Fund for an eligible condition. Claimants receiving benefits through the Workers’ Compensation WTC Volunteer Fund should provide the VCF with their Workers’ Compensation file number.  The VCF may obtain information directly from the WTC Volunteer Fund regarding VCF claimants with WTC Volunteer Fund claims, which will allow the VCF to investigate the basis of any disability benefits, the amount of such benefits, and any other information that may be relevant to the VCF’s computation of loss.

 

f.  Obligation to notify the VCF of additional offsets   

If you receive, or become entitled to receive, any additional payment that constitutes a collateral offset at any time after you submit your claim – including after any award has been determined and paid – until the VCF closes on October 1, 2090, you are required to notify the VCF in writing within 90 days by completing and submitting the “Collateral Offset Update Form” found under “Forms and Resources” on the VCF website.  A significant increase (more than a cost of living adjustment) in the amount of a previously reported collateral offset may constitute an additional payment that should be reported.

Do not use this form if you have had a decrease in a collateral source payment and would like to request that the VCF review your award. To request a review in the case of a decrease in a collateral source payment when the higher payment was used in the calculation of your award, you must file an amendment.

When determining when to notify the VCF, keep in mind the following general guidelines:

• If you notify the VCF within 90 days of the date you learned that you were entitled to receive a new or revised collateral source payment, your determined or paid award will not be adjusted to reflect the new or revised entitlement or payment.
• If you notify the VCF more than 90 days after the date you learned that you were entitled to receive a new or revised collateral source payment, the VCF may adjust your determined or paid award to reflect the new or revised entitlement or payment as an offset, which may result in a lower award.

The obligation to report collateral source payments is ongoing, until the VCF stops taking claims on October 1, 2090. If you become entitled to receive additional collateral source payments after an initial notification to the VCF, you will need to submit a new form to advise the VCF of this update.

 

2.6  Withdrawing an Economic Loss Claim   

If you filed a claim for economic loss and have since decided that you do not want the VCF to review your economic loss claim, you may withdraw that portion of your claim at any time by filing an amendment.  Follow the instructions on "How to File an Amendment" to amend your claim.  

When filing your amendment, you must identify the specific type(s) of economic loss claim(s) you are withdrawing: past lost earnings, future lost earnings, replacement services, and/or medical expenses.  If you filed a claim for more than one type of economic loss, you may choose to withdraw some or all of your economic loss claims.  If you withdraw all of your economic loss claims, the VCF will then review your claim for non-economic loss only.

 

 

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