Court Rejects FDNY Widow’s Suit to Recover 9-11 Related Benefits

The widow of a retired FDNY firefighter who died of cancer in 2018 has failed in her suit to recover from the World Trade Center Volunteer Fund or workers compensation. Maria Fierro-Switzer filed suit against the WTCVF and the Workers’ Compensation Board arguing that despite being retired, her husband should be eligible since he volunteered to assist in recovery efforts at Ground Zero after the terrorist attacks in September 2001.

William E. Switzer retired from FDNY in the late 1990s following an on-the-job injury. Despite being on a disability pension, he returned to volunteer at Ground Zero. However, he failed to comply with a statutory requirement for eligibility for benefits prior to his death. The law requires those who volunteered at Ground Zero to register with the Workers Compensation Board by completing Form WTC-12. As explained by the New York Supreme Court Appellate Division:

• Decedent died in March 2018. In July 2018, claimant filed a claim for death benefits asserting that decedent died from metastatic kidney cancer that, in turn, was caused by his exposure to toxins while volunteering and aiding in the rescue and recovery efforts at Ground Zero in the wake of the September 2001 terrorist attacks.
• Specifically, claimant alleged that decedent, who had ceased working as a firefighter approximately three years earlier, volunteered at the World Trade Center site for 99 hours over the course of five days in September 2001.
• Additionally, claimant provided a letter from a physician who opined, based upon his review of decedent’s medical records, that decedent’s volunteer efforts “increased his risk for the development of his renal cell carcinoma”; ultimately resulting in decedent’s death.
• As a general proposition, absent some evidence of an employment relationship, one who acts or renders aid strictly as a volunteer is not entitled to workers’ compensation benefits.
• However, Workers’ Compensation Law article 8-A, which “was enacted to remove statutory obstacles to timely claims filing and notice for latent conditions resulting from hazardous exposure for those who worked in rescue, recovery or cleanup operations following the . . . [terrorist] attack[s]” effectively broadened the category of eligible benefit recipients by “provid[ing] a potential avenue of relief for workers and volunteers suffering ill health as a result of their efforts in the aftermath of the terrorists’ attacks” [including a volunteer in the definition of a participant in the rescue, recovery or cleanup operations]; [designating the uninsured employers’ fund as the entity responsible for administering claims by volunteers]).
• The Board has consistently held that the required registration form must be filed by the actual participant and not such participant’s surviving spouse.
• It is undisputed that decedent did not file the required WTC-12 registration form in his lifetime … and… absent the proper filing of such form, there is no basis for a claim under Workers’ Compensation Law article 8-A

Here is a copy of WTC-12. If any readers worked at Ground Zero, the deadline for filing WTC-12 is approaching: September 11, 2022.

Here is a copy of the decision: