Court Must Decide If Child Victims Act Revives Old Workers’ Compensation Claims

Did New York lawmakers intend the Child Victims Act (CVA) that revived old claims of sexual abuse to apply to claims by employees that would previously have been handled by the workers’ compensation system?

It’s the responsibility of the state’s civil courts, not the state’s Workers’ Compensation Board (WCB), to answer that because it is a question of law, a state appeals court has ordered.

A state Supreme Court appellate division unanimously overruled the Monroe County Supreme Court and remanded back to it three lawsuits brought by former newspaper delivery boys alleging they were sexually abused by a supervisor and a co-worker in the 1980s. The lower court had deferred to the WCB and put the cases on hold while awaiting an answer.

If the courts decide that the CVA does allow otherwise time-barred sexual abuse claims by employees, the cases may proceed in civil court, which must then decide whether the plaintiffs are limited to benefits under the workers’ compensation law or are they entitled to seek damages, according to the appellate ruling.

However, if courts find that the CVA does not revive time-barred workers’ compensation claims, the court should then defer to the WCB to allow it to determine what, if any, workers’ compensation benefits the former employees are entitled to given that their claims were not filed within the required two year period.

The plaintiffs in the three actions seek damages under the CVA arising from their employment delivering newspapers in the 1980s for the Rochester Democrat & Chronicle, which is now owned by Gannett Co. The plaintiffs allege that they were sexually abused by a supervisor and another co-worker and that Gannett is liable in negligence for their injuries.

In response, Gannett has insisted that the plaintiffs were employees of the newspaper company at the time and thus their exclusive remedy should be through workers’ compensation, not the courts. Gannett produced documents claiming to prove to that the company had workers’ compensation for minor employees including the delivery boys at the time.

Gannett moved for a stay of the three actions and a referral to the WCB for a determination whether the alleged injuries occurred in the course of employment and are compensable by workers’ compensation.

Monroe County Supreme Court Judge Deborah A. Chimes agreed to stay the cases pending a determination from the WCB.

The plaintiffs appealed that order and the Supreme Court, Appellate Division, has now ruled that the lower court erred.

In cases such as this, where the question is one of pure statutory interpretation, courts need not accord any deference to an administrative body as they might do where the issue involves “knowledge and understanding of underlying operational practices,” the appeals court stressed. Although factual determinations with respect to the applicability of the workers’ compensation law should be referred to the WCB, “questions of law remain within the domain of the court.”

The eight men claim they were sexually abused when they worked for the Rochester Democrat & Chronicle in the 1980s. The lawsuits were brought against a circulation supervisor, now deceased, another co-worker and Gannett Co., which did not then but does now own the newspaper.

The plaintiffs opposed deferring to the WCB, arguing that Gannett had not actually proven that the company had workers’ compensation coverage for all the plaintiffs at the time. The state requires employers to have coverage in place in order to rely upon workers’ compensation as the sole remedy in a workplace incident.

The plaintiffs also argued that the state legislature intended the CVA to apply to all claims of child sexual abuse and did not intend to exclude child employee claims.

Gannett argued that it is doubtful that the CVA revived claims for workers’ compensation because “the courts have repeatedly held that a workers’ compensation proceeding is not an action or special proceeding under the Civil Practice Act, but a “statutory proceeding having its own rules as to limitations.”

In other words, Gannett maintained, the WCB could determine that the claims fall within its exclusive jurisdiction and were revived, but are time-barred because the plaintiffs failed after 2019 to submit claims to it. Alternatively, the WCB might conclude that the plaintiffs’ claims were not revived at all by the CVA, in which case they were filed nearly 40 years too late.

In granting the deferral to the WCB, Monroe County Supreme Court Judge Chimes found that it “was beyond fair dispute” that the company had the required workers’ compensation coverage in the 1980s and that the minor delivery boys were covered under the policies.

Chimes said the existence of coverage is a question of law for the Supreme Court to resolve. After that, if the employer had secured coverage, questions of whether an employee’s injuries “occurred in the course of employment”—and are therefore compensable by workers’ compensation—must be determined by the WCB and it is is “inappropriate for the courts to express views with respect thereto pending determination by the board,” she found.

Chimes noted that the WCB has never had an opportunity to weigh in on the claims at issue because at no time, either contemporaneous with their injuries or following the enactment of the CVA in 2019, did the plaintiffs file claims with the WCB. Instead, they commenced negligence lawsuits.

The judge previewed the negative consequences for the plaintiffs of whatever the WCB might decide. “[I]f the Workers’ Compensation Board determines that the subject injuries occurred within the course of employment, there can be no unintentional tort action at all because workers’ compensation is an exclusive remedy. On the other hand, if the Workers’ Compensation Board determines that the injuries did not occur in the course of employment, a plaintiff may continue in his or her plenary tort action. Of course, in that instance, any recovery against the defendant will be “tenuous,” because “an injury sustained outside of the course of employment would, in most conceivable situations, lack the necessary common-law connection to the fault of the employer.”

Chimes also offered that the plaintiffs might decide to change their complaints to state claims for intentional torts, such as battery and sexual assault. Or perhaps they may claim to have been independent contractors and not employees to circumvent the WCB. However, she advised they would have difficulty making these arguments against Gannett.

But the appeals court unanimously ruled that the first order of business is for the civil court, not the WCB, to address the question of law about whether the CVA applies to old workplace sexual abuse claims by employees.

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