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Presumptive Evidence Of Causation In Workers’ Compensation Claims

Related To World Trade Center Rescue, Recovery And Cleanup Operations

                Article 8-A of the New York Workers’ Compensation Law (WCL) provides protections for employees and volunteers who develop a qualifying condition related to hazardous exposures that occurred during participation in World Trade Center rescue, recovery or clean-up operations following the terrorist attacks of September 11, 2001 

                Section 169 was added to Article 8-A of the WCL in 2022 to provide that certifications of illness issued by the World Trade Center Health Program (WTC HP) shall be accepted by the Workers’ Compensation Board (WCB) as presumptive evidence of causation that the certified illness is related to the injured person’s participation in rescue, recovery or cleanup-of operations. However, despite the language of that statute, the WCB in numerous decisions required injured persons to produce not only the WTC HP certification but also to produce separate prima facie medical evidence in order for a claim to proceed.

                The Law Firm of Alex Dell PLLC challenged the WCB’s interpretation and application of section 169 and, in a recent decision issued in Matter of NYS Division of Homeland Security, 2024 NY Wrk Comp G3410149 on May 28, 2024, the Board agreed with the argument made to it that the submission of a WTC HP certification for a particular illness or illness is presumptive evidence of causation for that illnesses and that is not necessary for the injured person to submit any additional medical evidence.   The Board agreed that once the injured employee or volunteer submits the WTC HP certification, it is presumed that the illness(es) certified by the WTC HP is related to injured persons’ participation in WTC rescue, recovery or cleanup operations and the burden is on the employer, organization or its insurance carrier to submit credible medical evidence to rebut that presumption.

                This is a significant decision that properly reflects the intent behind the Legislature’s addition of section 169 to the WCL and removes obstacles that the WCB had previously placed in the way of employees and volunteers who have suffered illness as a result of their participation in WTC rescue, recovery or cleanup operations.

Workers’ Compensation benefits include payment of expenses for necessary medical treatment, wage loss benefits for time that is missed from work due to the injury or illness, and in cases where the injury or condition has resulted in a permanent impairment, an award for schedule loss of use or ongoing permanent partial or total disability benefits.

If you or someone you know has suffered an illness related to participation in World Trade Center rescue, recovery or cleanup operations, call The Law Firm of Alex Dell, PLLC for a free consultation on the potential benefits available to you under the law. 

For over 25 years, The Law Firm of Alex Dell, PLLC has represented injured and disabled individuals throughout New York State with their New York State Workers’ Compensation, New York State Disability Retirement, Social Security Disability and Veterans Administration claims. That representation is now provided in Florida as well. 

Should you have any questions or you would like to discuss this matter with us further, please contact us at 1-866-965-2667.

We are here to help you.