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"Maria" is still trying to obtain workers' comp benefits for Sept. 11 cleanup work. Could she have been more prompt in claiming and getting medical care? Yes. But her hard luck story is like many within New York City's immigrant underclass. One out of eight private-sector cleanup workers in Lower Manhattan might have been undocumented workers like Maria.

She is one of many from Ecuador who worked in Lower Manhattan after Sept. 11. Like many fellow workers, Maria, 28, has been depending on philanthropy and public aid to get by.Her story reveals how ignorance, missteps and delays drive a deep schism between these workers and the workers' comp system.

Maria then moved to Washington, D.C., to clean up some post-office facilities potentially exposed to anthrax. She returned to New York City a few months later and worked again in Lower Manhattan. She wrapped up work there in November 2003.

A clinician working for the Mt. Sinai Medical Center examined her in 2004, as part of the World Trade Center Monitoring Program, which is tracking the health status of thousands of rescue and recovery workers. Her examiner referred her to the WTC Health Effects Treatment Program, which was providing free medical care at the time, funded by philanthropy. Federal funding started in late 2006.

As a rule, Mt. Sinai does not strongly advise its patients to file workers' comp claims. Its approach is consistent with public-health facilities in other parts of the United States, which treat work-related injuries for free without making sure that claims are properly filed.

Mt. Sinai declines to release information about how many of their WTC monitoring subjects or treatment patients are filed for or are covered by workers' comp.

Maria's clinicians determined that she was partially disabled from her work at ground zero. The full set of complaints include respiratory problems such as asthma, chronic rhinitis, conjunctivitis and gastroesophageal reflux disease.In addition, she complains of lower back pain, depression, anxiety and fatigue.

Despite this disability assessment, Maria waited until May 2006 to file a claim. It was not atypical for undocumented workers to delay filing, even when, like Maria, they had a medical document saying they were disabled. Like others, she just didn't act on it.

The New York Council of Occupational Safety has been aiding immigrant workers since late 2001 to get medical care and secure workers' comp benefits. In 2005, it redoubled its efforts to help them file claims.

Jonathan Bennett, an executive at NYCOSH, notes a catch-22: WTC disease claims are initially almost always "medical-only" claims, which don't make room for attorneys' fees. So plaintiff bar attorneys, a valuable source of advice, usually do not take on these claims.

Maria is currently unemployed and without health insurance. She stopped working as an asbestos handler in December 2003 because, she said, of poor health and inability to wear respirator protection. Most recently, she was dismissed from a child-care job due to her breathing problems, which include chronic cough and wheezing. She recently retained a workers' comp attorney.

She is also in need of care for hypertension and high cholesterol. For her nonoccupational conditions, she pays for primary care at a $30 sliding fee scale for visits and $15 for prescriptions at a community health clinic in Manhattan. She has benefited from an emergency food stamp program.

Her estranged husband, 27, is also an undocumented worker from Ecuador who worked at ground zero. He left the asbestos industry to work in construction to minimize his exposure.

Maria's clinicians at the Health Effects Treatment Program referred her to Associacion Tepeyac de New York. This agency has funding from New York Disaster Interfaith Services to help Sept. 11 workers. A case worker helped her get emergency assistance for utility bills. Maria's gas and electricity had been shut off for more than two weeks at the time of the request.

NYDIS has effectively been running an informal, philanthropy-funded workers' comp/family support program for those like Maria with difficult claims. This kind of support to injured workers can blur the distinctions between work-related benefits, public assistance and private giving.

It also leaves Maria on the outside looking in. Though in name open to all, the workers' comp system implicitly assumes that the worker is reasonably informed. The individual at the receiving end, like Maria, typically does not have the social network that American citizens take for granted and through which they learn what to expect from insurance programs and how to find professional help.

Some state workers' comp boards make a special effort to reach out to immigrants, even to undocumented worker communities, to educate them about worker rights and obligations. The New York State Workers' Compensation Board did not do so in the case of the immigrant workers involved in the World Trade Center cleanup. Its failure is all the more striking given the fiendishly complicated nature of disease claims.

PETER ROUSMANIERE, a Vermont-based consultant and writer, is the workers' comp columnist for Risk & Insurance®. STEVE YAHN contributed to this story.

October 15, 2007

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