Employee's acts on 9/11 don't qualify as 'rescue, recovery, and clean-up'
Merrill Lynch & Co., Inc., 109 NYWCLR 85 (N.Y. W.C.B. Panel 2009).
Ruling: A New York Workers' Compensation Board panel found an assistant vice president was not involved in rescue, recovery, and cleanup operations as those terms were intended in the "9/11 Bill." It also affirmed the workers' compensation law judge's decision that the employee's claim for benefits as a volunteer at ground zero was untimely filed.
What it means:
Under New York's amendment to its workers' compensation law in response to the terrorist attacks on Sept. 11, 2001, an employee's "volunteer" activities must fall into a category as defined in the law to be eligible for the extended filing date or to reopen claims that were previously denied for untimeliness.
Summary: A former assistant vice president filed a claim for compensation in which she alleged she volunteered at ground zero for her employer and suffered post-traumatic stress disorder. The panel upheld a finding that the new workers' comp provision did not apply to her claim. The panel determined that the assistant vice president's voluntary participation in a few confidential counseling sessions did not constitute "medical treatment" that qualified as an advance payment of workers' compensation and would waive the employer's timeliness defense. The panel, therefore, held there was no reason to "further develop the record."
The assistant vice president's alleged "rescue" activities occurred on Sept. 11, 2001, when she gave bank workers, who were not in distress, trapped or injured, directions to New Jersey. The assistant vice president's recovery of her work laptop was also not the type of recovery intended under the law. The panel explained "recovery" meant recovery of injured persons or human remains, not inanimate objects. Cleaning her apartment to use as a temporary office was also insufficient to establish she was involved in a "clean-up operation," according to the panel. The panel concluded she was "not a participant in rescue, recovery, and/or clean-up operations as defined in [the Workers' Compensation Act amendment]."
The panel noted the counseling was confidential and would never have been reported to the employer. It also noted that the counseling, which was provided by the employer's in-house counselor, was provided regardless of whether a workers' compensation claim was filed.
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July 30, 2009
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