The judge presiding over former Democrat and Chronicle newspaper carriers’ Child Victims Act accusations against the Rochester daily has bowed to Gannett Co. Inc.’s bid to send the cases to the state’s Workers’ Compensation Board.
In a ruling handed down last week, state Supreme Court Justice Deborah Chimes agreed to put the CVA complaints eight ex-D&C paperboys filed against the newspaper on hold while the Workers’ Compensation Board decides whether the state’s workers’ comp law covers sexual abuse of children.
The ruling does not necessarily signal a victory for D&C parent Gannett. Whether the media chain succeeds in a bid it contends would kill the CVA complaints is, for now, up to the workers’ comp board. Whatever its outcome, a hearing before the board will further delay any final decision in the CVA cases, which have dragged on for more than three years.
Several former D&C carriers, claiming that as teens and preteens in the 1980s they were repeatedly and routinely molested over a period of years by a D&C route supervisor, filed CVA complaints against the D&C and Gannett shortly after the law took effect in October 2019.
With an eye toward giving people who had been sexually abused as children a long-denied chance to go after their abusers, the CVA temporarily lifted a statute of limitations that had otherwise protected abusers whose victims had not come forward as children. The suspension opened a two-year window for survivors to pursue legal claims against their abusers.
After it took effect in October 2019, the CVA almost immediately led to thousands of claims of past abuse by priests filed against New York Catholic churches and dioceses.
The Roman Catholic Diocese of Rochester was the first of four in the state to ask for Bankruptcy Court protection to deal with the onslaught. The Rochester diocese’s Chapter 11 and similar bankruptcies filed by Buffalo, Syracuse and Rockville Center, Long Island dioceses have yet to be resolved as have hundreds of state court CVA cases against Rochester-area Catholic churches.
The Gannett CVA cases are a tiny subset of the sexual abuse claims the law spurred. But they uniquely raise an unsettled question of state law: whether workers’ comp or the courts should cover workplace sexual abuse claims.
If such claims are settled by a court, employers could be hit with punitive damage awards won by workers able to convince a jury—as the ex-paperboys hope to do—that the employer negligently ignored complaints against an abuser or tried to cover them up.
No such claims are allowed under workers’ comp. First passed in 1909, the state’s workers’ comp law requires businesses to carry special insurance to cover employees’ workplace medical claims. While providing for injured workers’ medical treatment, the law protects employers by forbidding workers who collect workers’ comp benefits from suing over the same injury and by making the system the only allowable recourse for workers who are injured on the job or fall ill due to conditions suffered at work.
Gannett’s attorneys maintain that as employees the paperboys should have filed workers’ comp complaints either when they were molested or when they filed CVA claims. They also claim that moving the CVA complaints to the state’s worker’s comp bureaucracy would effectively kill the ex-paperboys’ CVA complaints because the time for the former carriers to file workers’ comp claims has now expired.
Chimes’ ruling does not concede any of those points. It only pauses the state-court CVA cases and asks the workers’ comp board to say whether it or she has authority to rule.
“The court … refers this matter to the (Workers’ Compensation Board) ‘to determine whether plaintiff has a valid cause of action for damages or whether he is limited to benefits under the Worker’s Compensation Law,’” the ruling states, quoting words Gannett lawyers’ wrote in briefs asking for the venue switch,
Chimes’ decision comes in the case brought by the first of the eight to sue, Rick Bates. She is now hearing the eight as a group.
A onetime Brighton paperboy, Bates is now in his 50s. He lives in Washington, D.C., where he works in the nonprofit sector and is married to a onetime mergers and acquisitions attorney who gave up her law practice to also work in the nonprofit sector.
Bates’ and other ex-carriers’ court complaints allege that D&C officials were aware of former route supervisor Jack Lazeroff’s abusive behavior after a Charlotte parent complained. A filing claims that instead of immediately firing Lazeroff, the newspaper transferred him to Brighton, where he allegedly abused the seven former carriers. (Gannett later fired Lazeroff, who died in 2003.)
In an answer to Bates’ complaint filed early in the case, Gannett denies responsibility for any abuse its former paperboys might have suffered. As employees, Gannett maintains, the former paperboys’ only recourse is workers’ comp.
Gannett’s lawyers cite the worker’s comp law’s so-called exclusivity provision as justification for killing the ex-paperboys’ court complaints. The workers’ comp system will deny benefits to the former carriers because they failed to file complaints in a timely fashion, the attorneys maintain.
Bates says the media chain’s workers’ comp gambit flummoxed him from the start. Why, he wondered as a Gannett lawyer deposed him last June, were lawyers asking him if he had applied for workers’ comp?
“When I was 11, I had no idea what workmen’s comp was,” Bates says. “Nobody at the D&C ever said anything to me about workmen’s comp.”
As an 11-year-old, shame and confusion kept him from telling anyone including his mother, a single parent, about Lazeroff’s alleged abuse, let alone reporting it to D&C officials higher up the chain than Lazeroff, Bates adds. For him, Lazeroff was the face of the D&C.
In a reflection on what for him was an ugly childhood episode that he would like to wipe from his memory, Bates now wonders: “Was I supposed to make a (workers’ comp) claim every time he had his hands on me?”
While Gannett’s lawyers have staunchly maintained that workers’ comp is the former carriers’ only recourse, they have also insisted that only the workers’ comp board can say whether the workers’ comp law covers workplace sexual abuse.
Chimes’ ruling sends the cases to the board but makes takes no position on whether she or the board should rule on the ex-carriers’ complaints.
In a brief filed in October, Katie Shipp, an attorney representing the six other Lazeroff CVA accusers, predicted that if asked to answer the question, the workers’ comp board would send the case back to Chimes.
Bates’ and other CVA plaintiffs’ claims would be “rejected by the (workers’ comp board), and then sent back to this Court to decide this very issue,” Shipp asserted in the brief.
In the filing, Shipp asked Chimes for permission to amend her clients’ complaints to add accusations against Gannett of violations under the state’s human rights law, a move that Shipp contends would render Gannett’s workers’ comp gambit moot and let Chimes begin to consider the CVA claims’ merits.
Chimes is delaying a decision on whether to let Shipp add human rights charges to the case.
“Due to the stay, the Court grants a continuance on the cross-motion to amend until a decision is rendered from the workers’ compensation board,” the judge’s Dec. 13 ruling states.
How soon the workers’ comp board might render a decision is not clear.