Volunteer who Died from Ground Zero Toxins not Entitled to Benefits

New York, NY (WorkersCompensation.com) – Anyone on the scene of the rescue and recovery effort following the September 11 attacks likely fits the definition of a “hero.”

But, as Matter of Fierro-Switzer v. World Trade Center Volunteer Fund, No. 532851 (N.Y. Sup. Ct. App. Div. 07/07/22) shows, even people who volunteered their time to help at Ground Zero, might not receive benefits from their injuries.

A New York City firefighter retired from the department on a disability pension in the late 1990s. When he died in 2018, his spouse filed a claim for death benefits, asserting that the firefighter died from metastatic kidney cancer that 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 11 attacks.

The spouse claimed that the firefighter volunteered at the site for 99 hours over the course of five days and provided a letter from a doctor who opined that, based on his review of the firefighter’s medical records, the firefighter’s volunteer efforts “increased his risk for the development of his renal cell carcinoma.”

The Workers’ Compensation Law Judge disallowed the claim, finding that because the firefighter’s alleged exposure to toxic chemicals resulted from his volunteer work, his spouse did not have a compensable claim.

The Workers’ Compensation Board affirmed the WCLJ’s decision, prompting the spouse to appeal to court.

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, a provision of New York law provides a potential avenue of relief for workers and volunteers suffering ill health as a result of their efforts in the aftermath of the September 11 attacks.

For this provision to apply, the claimant must file a registration form indicating the dates and locations of the volunteer’s participation and the name of the volunteer’s employer during the period of participation.

In this case, the firefighter never filed the required registration form, nor did the spouse file it on his behalf.

“Absent the proper filing of such form, there is no basis for a claim,” the court wrote.

Because the firefighter was not participating in the cleanup efforts in the course of his employment, his spouse could not claim benefits under workers’ compensation law.

Without a showing that she or the firefighter filed the appropriate form, the spouse was not entitled to benefits.

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