Gannett Co. Inc.’s attempt to shunt former Democrat and Chronicle newspaper carriers’ Child Victims Act claims off to the state’s Workers’ Compensation Board will be dead on arrival, attorneys for a claimant predict in a recent court filing.
In an amended complaint filed Nov. 16, lawyers for Rick Bates contend that Gannett’s attorneys’ insistence that the state’s workers’ comp system is the only forum in which former paperboys claiming sexual abuse can bring their complaints ignores the intent of the CVA.
The amended complaint comes as the three-year-old case moves toward an inflection point in which the presiding judge, Erie County Supreme Court Justice Deborah Chimes, will have to decide whether to bow to Gannett’s insistence that she step aside or move to quash the media firm’s bid to take the case out of her courtroom.
In a twist to their contention that the former carriers’ CVA claims can only be heard as workers’ comp cases, Gannett’s attorneys further maintain that since the ex-paperboys failed to file workers’ comp claims as teenagers and pre-teens in the 1980s and also failed to alert the Workers’ Compensation Board when they filed CVA claims in 2019, the board will be forced to deny their claims as time barred.
The former paperboys’ quest to be belatedly compensated for sexual assaults they say they suffered decades ago at the hands of a long-dead D&C route supervisor, Jack Lazeroff, moves the court into an apparently unsettled and little-tested area of New York law.
A persistent theme running under the welter of arguments and counterclaims in the case is the question of which should take precedence: the so-called exclusivity provision of the state’s century-old Workers’ Compensation Act or the Legislature’s far more recent attempt to give victims of childhood sexual abuse a long-denied day in court.
That question in turn raises a further question: Would a ruling consigning the CVA cases to the state’s workers’ comp system carry through to other, more current workplace sexual harassment claims?
A request for guidance the Rochester Beacon made to the state’s Workers’ Compensation Board some two months ago went unanswered. Several plaintiff-side workers’ comp and employment lawyers unconnected to the Gannett CVA cases did not respond to repeated similar requests. One employment attorney declined to comment.
Signed into law in 2019, New York’s Child Victims Act temporarily lifted a statute of limitations that otherwise would have barred decades-old claims of sexual abuse. The measure opened a window, giving now fully grown victims of childhood sexual abuse an avenue to pursue their abusers in court.
The act’s passage came amid a rising tide of accusations of past abuse against Catholic priests, parishes and dioceses that quickly translated to hundreds of CVA claims.
To deal with more than 400 such claims, the Roman Catholic Diocese of Rochester filed a Chapter 11 bankruptcy a month after the CVA took effect. Dioceses in Buffalo, Syracuse and Rockville Center followed. All have yet to be resolved.
The CVA claims against Gannett represent an extremely small subset of CVA actions. However, because the former D&C carriers were employees of the newspaper, Gannett maintains that it can avail itself of a unique defense not available to the church or the Boy Scouts: that the state’s workers’ comp system is the only forum in which the ex-paperboys’ complaints can be heard.
Dating to the first decade of the last century, New York’s workers’ compensation law established an administrative system for treating workplace injuries and work-related illnesses that operates independently of the state’s courts.
First passed in 1909, the Workers’ Compensation Act requires employers to carry special insurance to cover injuries their workers suffer on the job. It thus gives injured workers a guarantee of treatment. But since it also bars workers from suing for injuries compensated by workers’ comp, it shields employers from costly court actions that could saddle them with high-dollar damage awards.
The state’s Workers Compensation Board decides what injuries qualify. The law gives employers considerable say over where workers can seek treatment, a provision that can also help them contain costs. Each U.S. state has its own workers’ comp law, creating a patchwork of systems that do not always match.
A 2019 article in the insurance industry trade publication Business Insurance highlights an uneasy intersection between U.S. states’ workers’ comp bureaucracies and sexual harassment claims, noting that the 21st century’s focus on such complaints raises issues not contemplated by the framers of workers’ comp laws in the late 19th and early 20th century.
“In the #MeToo era, the question of whether such incidents constitute a compensable injury in the workers compensation context is unclear,” the article states.
Some states consider sex abuse compensable under workers’ comp while others do not, it goes on to say. It does not name New York among states where the question is settled.
Under the CVA
Bates initially sued Gannett on the heels of the CVA’s passage in 2019. His claim was the first of several former CVA actions by D&C paperboys who alleged they had been repeatedly molested by Lazeroff.
A year before the CVA’s passage, Bates, spurred by the D&C’s coverage of abuse claims against Rochester-area Catholic priests, had reached out to Gannett reporters and officials, asking them to report on the abuse he allegedly suffered as a D&C paperboy.
The paper ran several stories detailing claims by Bates and other ex-carriers roughly a year after Bates first contacted it, waiting until he and others filed CVA claims to do so. In an email, a D&C corporate official had told Bates that the paper had investigated his claims, could not confirm them and concluded that it had no liability. The D&C has not since reported on its own CVA court battle.
Bates’ CVA complaint and six others similarly alleged ongoing sexual abuse by Lazeroff. In an eighth CVA action, a former D&C carrier claims to have suffered abuse at the hands of an unknown D&C employee during the same period in the early 1980s.
The seven similar complaints allege that D&C officials were aware of Lazeroff’s predations but ignored them, transferring him out of a territory where a parent had complained into another where Lazeroff had unfettered access to paperboys.
An unknown number of other former D&C paperboys who are not willing to air complaints publicly but have long nursed similar complaints may exist. One such individual spoke to the Rochester Beacon in 2019 on the condition that he not be named.
Lazeroff was ultimately fired by the D&C and died in 2003.
In answering papers to Bates’ initial complaint filed in 2019, Gannett denied responsibility for any actions Lazeroff may have taken. It raised the workers’ comp defense then, but waited three years to start actively pursuing it.
As previously reported by the Rochester Beacon, Bates’ attorneys accuse Gannett of stalling on handing over records that would prove their contention that D&C officials were aware of Lazeroff’s abuses and failed to shield carriers from it.
In the new filing, Bates’ lawyers maintain that contrary to Gannett’s claims, Bates was not even covered by workers’ comp when he worked as a D&C carrier. In fact, the complaint contends, Bates, who was 11 when he started work for the Rochester daily, was underage and illegally employed by the newspaper.
Gannett attorneys have not yet filed an answer to the amended complaint, but an earlier filing anticipated some of its arguments.
“Plaintiffs may also contend that their employment was illegal because it is unclear whether they had “work certificates” in the 1980s as required by Education Law Section 3228. … This is a red herring,” Gannett attorney Peter Abdella contends in the brief.
In other filings, Gannett’s lawyers produced evidence purporting to show that the D&C’s 1980s-era workers’ comp policies covered the paper’s underage carriers. Bates’ amended complaint dismisses that claim as unproven.
In the legal battle, each side claims its position is the only one that correctly hews to the Legislature’s clearly stated intent.
Gannett holds that in passing the state’s century-old workers’ comp law, the Legislature meant for all workplace injuries including sexual assaults to be mediated only under the workers’ comp system. A provision of the law states that workers’ comp is the exclusive remedy for workplace injuries, Gannett’s lawyers note.
Nonsense, contend Bates’ and other abuse survivors’ attorneys. In passing the 2019 CVA, the Legislature sent a clear message that all such child victims are now entitled to a long-delayed day in court, not a hearing before a non-judicial administrative body.
“Prior to the passage of the CVA, (Bates’) claims were time-barred the day he turned 22 years old. The enactment of the CVA allows (Bates) to pursue restorative justice in New York State,” argues Bates’ attorney Michael Dowd in the newly filed amended complaint.
His brief adds that in the 1980s when Bates and other of its underage carriers were being abused, “the D&C … concealed the sexual abuse of children by Lazeroff and other D&C employees in order to … protect their reputation, and to prevent victims of such sexual abuse from coming forward during the extremely limited statute of limitations … despite knowing that Lazeroff and others would continue to sexually abuse children.”
Last September, Gannett’s lawyers asked for proceedings in Chimes’ court to be halted so that the Worker’s Compensation Board could consider the D&C CVA cases. The company maintained that Chimes, one of several state court judges specially trained to preside over CVA cases, is barred by the state’s workers’ comp law from ruling on any aspect of the case including whether workers’ comp is the appropriate arena in which the CVA complaints should be heard.
“Whether to treat these Child Victims Act claims as workplace injuries raises important questions, particularly whether workers’ compensation is an adequate remedy for claims of workplace sexual abuse,” Gannett attorney Abdella concedes in a brief. “But irrespective of the gravity of the question, it would be inappropriate for the court to answer it before the Workers’ Compensation Board has an opportunity to do so.”
Human rights claim
In late October, Katie Shipp, a lawyer representing the six other ex-paperboys suing Gannett over Lazeroff’s alleged predations, asked Chimes for permission to file an amended complaint adding charges against Gannett under the state’s human rights law.
A human rights law claim would make short work of Gannett’s attempt to shunt the CVA claims to the workers’ comp system, Shipp asserts.
“By defendant’s own admission, the claims are decades past the applicable workers’ compensation statute of limitation. The amendment of plaintiffs’ complaint will allow all parties to move forward with discovery and litigation in the proper venue—civil court, rather than staying the case while Plaintiffs’ claims are filed with the WCB, rejected by the WCB, and then sent back to this Court to decide this very issue,” Shipp writes in the brief.
Shipp has so far not filed papers adding a human-rights law claim.
How Chimes might deal with Gannett’s and the former carriers’ attorneys competing claims is not clear. Both sides continue to file briefs as the case promises to extend into the coming year.