How Does the VCF Calculate Economic Loss?

Over 400,000 people who worked, lived, or went to school in lower Manhattan  inhaled toxic dust during the year after September 11th. The September 11th Victim Compensation Fund (VCF) compensates those exposed to the toxic dust  for all losses from 9/11-related physical conditions, including pain and suffering. This explains how the VCF calculates economic loss to determine the amount of compensation awarded. For more information, please contact a 9/11 VCF lawyer.

Determining the Extent of Your Losses

The VCF considers several factors when determining how much compensation to award, including your physical illness or condition (cancer, breathing disorder, or digestive disorder), loss of earnings or benefits, out-of-pocket medical expenses, and any replacement services loss. While the VCF awards and pays pain and suffering losses for most all eligible claims, this writing focuses on the additional economic losses that are available.

To determine how much compensation you are entitled to for lost earnings, the VCF must first determine through medical documentation whether you:

• Cannot work as a result of your 9/11-related condition
• Have reduced ability to work, resulting in less income than you would have received before your accident

For those filing a claim on behalf of a loved one who died, a family representative can seek compensation for both the income and benefits that the deceased lost due to being unable to work while they were alive, as well as the loss of future expected earnings (based on their age at the date of death) and benefits resulting from their untimely death.

When determining economic losses, the VCF also considers:

• Income earned before illness: The VCF considers the income documentation you submit with your claim and data from the Social Security Administration. The VCF looks at how much income you (or the lost loved one) earned in the three years preceding the date when economic losses began to occur.
• Percentage of loss caused by covered conditions: The VCF will determine how much economic loss is related to a covered 9/11 condition and how much results from other illnesses. The VCF only compensates for losses from covered conditions.
• After-tax income
• Employer-provided benefits: If you lost benefits due to your 9/11-related condition, the VCF would also consider these. Many people do not have documentation showing what benefits they received from their employer; in these cases, the VCF uses standard amounts for retirement contributions and pensions.
• Work-life expectancy: This calculation estimates the time a person would remain in the workforce and helps provide compensation for years lost to disability or death. The VCF generally does not award economic losses to claimants who were 65 years or older at the time of disability or death, as they have reached their reasonable work-life expectancy. There may be exceptions to this “age cap” in exceptional cases, however.
• Growth rates: This measurement estimates anticipated cost-of-living, inflation, and estimated productivity increases.
• Risk of unemployment: Due to the temporary nature of modern employment, everyone faces some risk of being unemployed. Work-life expectancies include times when a claimant would have been working or looking for work.
• Personal consumption: For those who have died, the VCF also estimates how much income the decedent would have consumed for personal reasons and not made available to the household. To do this, they evaluate the decedent’s share of household income, the household size, and things like food, clothing, transportation, and personal care.

Other Types of Economic Loss

While wage loss represents the largest category of economic losses claimed through the VCF, other types of compensable out-of-pocket costs can also be included. For example, you could claim out-of-pocket medical expenses for your condition that you incurred before the date when the World Trade Center Health Program (WTCHP) certified your 9/11-related medical condition and began providing free treatment for it.

The VCF will not compensate for any medical expenses that an insurance company or applicable secondary payer has not yet evaluated or for treatment of a certified condition outside of that received through the WTCHP. Treatment expenses paid by a private insurer, worker’s compensation program, or those denied by a private insurer because they fall under an insurance deductible are also not covered.

While the VCF will compensate expenses related to medical treatment, medical equipment, diagnostic tests, surgery, and other procedures related to the treatment of a 9/11-related condition, the fund will not compensate expenses associated with traveling for medical procedures, such as lodging or food.

Additionally, the VCF will only consider paying medical expenses that exceed $5,000. For personal injury claims, you must submit medical expenses as an amendment to an existing, compensated claim. For deceased claims, however, the request for unpaid medical expenses must be made with the original submission of the deceased claim.

Medical expenses should be filed as amendments for personal injury claims so VCF administrators can keep the claims process moving as quickly as possible. Because medical expense requests require documentation and sometimes the need for the VCF administrators to communicate with physicians, hospitals, and insurance providers, reviewing these expense requests takes time and can delay the process.

Collateral Source Offsets

Sometimes, VCF claimants receive assistance from more than one organization. When determining how much to award a claimant, the VCF considers how much assistance they receive from other programs and subtract this amount from the compensation award. This is known as collateral source offsets.

Some offsets you must report to the VCF include:

• Social Security Disability Insurance payments made to the claimant
• Benefits received through life insurance, pension funds, or death benefit programs
• Settlement payments from September 11th-related lawsuits
• Payments by federal, state, or local governments due to terrorist-related aircraft crashes or debris removal

The following are NOT collateral source offsets and you do not have to report them for VCF consideration when filing a claim:

• Charitable gifts from privately-funded charitable entities
• Tax benefits received from the federal government due to the enactment of the Victims of Terrorism Tax Relief Act
• The cost of treatment through the WTCHP program
• Deferred or vested compensation from employment

In some cases, the amount of collateral offsets created when the claimant receives benefits from other programs exceeds the amount of their economic loss claim. The VCF encourages claimants to speak with a lawyer about offsets on an economic damage claim before submitting the claim. Often, the claimant can obtain compensation faster if they submit a claim seeking only non-economic losses when they have a lot of collateral source offsets.

The Requirement to Notify the VCF of New Collateral Offsets

After submitting or obtaining an award for a VCF claim, you must notify the VCF of any new collateral offsets you receive in writing within 90 days by submitting a collateral offset update form.

Appealing a Compensation Determination

After you submit a VCF claim, it undergoes several review processes to ensure you have submitted the proper documentation and that you are eligible for an award on your claim. You will then receive a decision explaining how much compensation you will receive.

This decision will include appeal rights, giving you 30 days to appeal if:

• You believe the VCF miscalculated or overlooked a component of the award and you disagree with the amount of the award determination
• You can provide additional documentation showing a miscalculation
• You believe testimony would help provide a basis for the VCF to recalculate and increase your award

The VCF appeal procedure follows these steps:

• The claimant files an Appeal Request Form within 30 days of being notified of the VCF’s award decision.
• The claimant completes and submits their complete appeal package within 60 days of the date of the notification letter.
• The VCF schedules a hearing if the appeal is valid.

The VCF withholds payment until after the appeal has taken place and it renders its decision.

How a Lawyer Can Help You With Your VCF Claim

The VCF provides needed compensation to those who incurred economic losses from exposure to the toxic dust plume that blanketed Lower Manhattan when the Towers collapsed. Claimants are not required to hire a lawyer to file a claim. However, hire a lawyer experienced in compiling and filing the documentation needed to prove economic losses.

Some of the services an experienced 9/11 benefits lawyer can provide include:

• Assistance applying for the WTCHP to obtain a certification, no-cost lifetime medical treatment, and monitoring of the 9/11-related condition
• Assistance registering with the VCF before your filing deadline and meeting any any strict VCF deadlines
• Preparing the documentation necessary for your claim to ensure the process moves efficiently and smoothly, including drafting affidavits and gathering the other proofs required for a successful 9/11 claim
• Helping you decide whether you should appeal a compensation determination and an attorney to represent you at a hearing held before the Department of Justice hearing panel
• Prepare and file an amendment to provide new information seeking an additional award of compensation
• Helping you appeal a compensation decision, including determining the type of information that is necessary to show that the VCF miscalculated your award

Would you like more information about filing a VCF claim and what to expect? If so, contact an experienced VCF lawyer for a free consultation.