Petition for Writ of Certiorari — Guy Cozzi, Petitioner v. American Stock Exchange, et al.
Supreme Court briefNov 29, 2019
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No.
IN THE
SUPREME COURT OF THE UNITED STATES
/fts
Guy Cozzi
(Your Name)
— PETITIONER
VS.
_ Workers’ Compensation Board, et al. _ — RESPONDENT(S)
Supreme Court, U.S.
FILED
ON PETITION FOR A WRIT OF CERTIORARI TO
NOV 2 9 2019
OFFICE OF THE CLERK
__New York State Supreme Court Appellate Division Third Judicial Department__
(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)
PETITION FOR WRIT OF CERTIORARI
Guy Cozzi
(Your Name)
29 Valley Drive, Box # 4083
(Address)
Greenwich, CT 06831
(City, State, Zip Code)
203-660-0833
(Phone Number)
Page 7 of 55
QUESTIONS PRESENTED
1. Were the Workers’ Compensation Board (WCB) rulings denying my Article 8-A claim
and RB-89 rehearing request, arbitrary, capricious and an abuse of discretion?
Answer: Yes.
2. Does the 96 year old Workers' Compensation Law (WCL) § 123 law with its 7 year limit
from the “date of accident”, conflict with the intent of the New York State Legislature
for the new Article 8-A laws because the “date of accident” for claimants is 2001-2002,
which is 17 years ago? Does this violate Equal Protection and Due Process
rights of all Article 8-A claimants because it prevents RB-89 rehearing approvals
even before any Article 8-A claims are filed? Answer: Yes.
3. Is it a violation of the US Constitution, Separation of Powers, for the WCB to
change the Article 8-A law (and intent of the Legislature) by adding “Ground Zero” and
“affiliated with an authorized entity or agency” restrictions? Answer: Yes.
4. Did the WCB court violate the clear wording and intent of the Article 8-A law by
adding “Ground Zero” and “affiliated with an authorized entity or agency”
requirements to make it very restrictive for some 9-11 rescue/recovery/cleanup
workers? Answer: Yes.
5. Did the WCB violate Stare Decisis by ignoring violations of the Constitution in their
ruling to deny my Article 8-A claim and my RB-89 rehearing request? Answer: Yes.
6. Did the WCB ruling denying my RB-89 rehearing request ignore violations of the
Constitution in their prior rulings for my court case? Is this similar to the legal concept
of using “Fruit of the Poisonous Tree”? Answer: Yes.
7. Did the WCB abuse their discretion and violate my Equal Protection and Due
Process rights when they prevented me from submitting additional evidence and
documentation for my RB-89 request for a rehearing? Answer: Yes.
8. Did the WCB violate my Equal Protection and Due Process rights by refusing
to process and give judicial review for my Article 8-A Volunteer work and my WTCvol-3
form? Answer: Yes.
9. Did the WCB violate my Equal Protection and Due Process rights when they
ignored WCL § 165 when ruling to deny my RB-89 request? Answer: Yes.
10. Did the WCB decision denying my RB-89 request forget to state any date of
disablement as required by WCL § 164? Does this violate my Equal Protection
and Due Process rights? Answer: Yes.
Page 8 of 55
11. Does WCL § 1 et seq. require that presumptions of laws operate in favor of the
claimant? Did the WCB not do this for my claim which then violates my Equal
Protection and Due Process rights? Answer: Yes.
12. Did the WCB violate the NY Supreme Court rulings that state the Board is obligated
to assess the “prejudice to the claimant” which would have inured if the case were
“closed”? Answer: Yes.
13. Did the WCB violate “Intelligent & Meaningful Judicial Review” in their ruling
to deny my RB-89 request? Answer: Yes.
14. Is the intent of the NY Legislature to allow anyone denied in the past under the old
Article 8-A laws, to now be given the opportunity of judicial review under the new
amended law? Answer: Yes.
15. Since my prior appeals were determined to be filed as “untimely” by the NY Supreme
Court and the NY Court of Appeals, then is it true that my Article 8-A claim was never
“truly closed”? Answer: Yes.
16. Did the New York Appellate Courts fail to follow the requirements for a review court
as stated in U.S. Code §706: Scope of Review and (1)(2)(3) of 5 U.S.C.S. § 7703(c)?
Answer: Yes.
17. Did the New York Appellate Courts fail to follow the requirements for a review court
as stated in the Constitutional-Fact Doctrine? Answer: Yes.
18. Did the New York Appellate Courts improperly give Chevron deference, Auer
deference, and/or Skidmore deference to the administrative actions of the
Workers’ Compensation Board rulings for my case? Answer: Yes.
19. Is the United State Constitution the key that opens the door that has been
hidden and shut for 18 years? Answer: Yes.
a. That door has blocked many 9-11 injured workers and volunteers from getting
the help they need and rightly deserve from the Article 8-A law. The US
Constitution requires that the door must be unhidden and unlocked for all
injured 9-11 rescue, recovery, cleanup workers and volunteers.
Page 9 of 55
LIST OF PARTIES
[ ] All parties appear in the caption of the ca3e on the cover page.
[X] All parties do not appear in the caption of the case on the cover page. A list of all
parties to the proceeding in the court whose judgment is the subject of this petition is as
follows:
1. New York State Workers’ Compensation Board - Respondent
2. American Stock Exchange - Employer-Respondent
3. Pacific Indemnity Company - Carrier-Respondent
The following list constitutes the names of the parent companies; subsidiaries and
affiliates of Pacific Indemnity Company:
a. ACE Limited is the parent company of The Chubb Corporation.
b. Federal Insurance Company
c. Chubb National Insurance Company
d. Vigilant Insurance Company
e. Chubb Insurance Company of Australia Limited
f. Great Northern Insurance Company
g. Chubb Insurance Company of Canada
h. Pacific Indemnity Company
i. Chubb Insurance Company of Europe SE
j. Texas Pacific Indemnity Company
k. Chubb Atlantic Indemnity LTD.
l. Chubb Lloyd's Insurance Company of Texas
m. Chubb Insurance Company (Thailand) Limited
n. Executive Risk Indemnity Inc.
o. Chubb Argentina de Seguros, S.A.
p. Executive Risk Specialty Insurance Company
q. Chubb do Brasil Companhia de Seguros
r. Chubb Custom Insurance Company
s. Chubb de Chile Compania de Seguros Generales, S.A.
t. Chubb Indemnity Insurance Company
u. Chubb de Colombia Compania de Seguros, S.A.
v. Chubb Insurance (China) Company Limited
w. Chubb de Mexico, Compania Afianzadora, S.A. de C.V.
x. Chubb Insurance Company of New Jersey
y- Chubb de Mexico, Compania de Seguros, S.A. de C.V.
Page 10 of 55
RELATED CASES
New York State lower court and appeals court rulings for this case:
Cozzi v. American Stock Exchange, Workers’ Compensation Board, Pacific Indemnity Co.
1. No. G110 9023. Workers’ Compensation Board. 12-16-2014. The WCLJ ruled that
Article 8-A is not applicable to my claim and he set the case to be continued.
[Appendix G 5]
2. No. G110 9023. Workers’ Compensation Board (WCB). 03-10-2015. The WCB appeal
decision with WCB Chairman Judge Robert Beloten ruled:
“The claimant indicated in his WTC-12 registration form that he worked for the
employer at 86 Trinity Place, New York, NY 10006, which is located in lower
Manhattan and is within the World Trade Center site specified in the
statute. The Board Panel finds that the WCLJ’s finding that Article 8-A
does not apply to this claim is not supported by substantial evidence and
is rescinded, without prejudice.” [Appendix G 4]
3. No. GUO 9023. Workers’ Compensation Board. 09-29-2015. The same WCU denied
my Article 8-A claim again because he uses unconstitutional “Ground Zero” and
“affiliated with an authorized entity/agency” restrictions to deny Article 8-A claims.
Even after WCB Chair Judge Beloten reversed the prior ruling, the WCLJ used
unconstitutional restrictions to deny my claim for a second time. [Appendix G 3]
a. On page 3 line 13 of the court hearing minutes, it quotes the WCLJ telling
me: "I'm not talking about cleaning your office or cleaning your desk. Were
you under the direction of any entity in the overall cleanup of the site,
any site?"
4. No. G110 9023. Workers’ Compensation Board. 02-05-2016. The WCB appeal
decision denied my claim because the WCB uses their unconstitutional “Ground
Zero” and “authorized entity/agency” restrictions to deny Article 8-A claims.
[Appendix G 2]
a. In their decision, the WCB ignored the fact that my cleanup work took about
8 hours over several days. Moreover, the judges (not WCB Chairman Judge
Beloten) completely ignored all the Constitutional violations in the WCB
decision that I wrote about in my appeal submissions.
5. No. G110 9023. Workers’ Compensation Board. 05-12-2016. The WCB ruled to deny
my request for a Full Board Review. [Appendix G 1]
6. No. 523341. New York Supreme Court (NYSC) Appellate Division Third Judicial
Dept.. 03-30-2017. The NYSC ruled “the merits of the underlying decision are not
properly before us”. As noted in my legal briefs submitted to that court, I was given
Page 11 of 55
incorrect information by the WCB about how to properly appeal the WCB Article
8-A denial decision. If the WCB had told me the correct steps to appeal, then the
matter would have been properly before the NYSC. [Appendix F]
7. No. 523341. New York Supreme Court Appellate Division Third Judicial Dept..
06-15-2017. The NYSC denied my Motion for Reconsideration. [Appendix E]
8. No. 2017-783. New York Court of Appeals. 10-19-2017. The New York Court of
Appeals (NYCA) ruled that my motion was untimely. [Appendix D]
9. No. G110 9023. Workers’ Compensation Board. 01-19-2018. The WCB Judges filed
their court decision denying my RB-89 request less than one week after I emailed
the WCB OGC (Office of General Counsel) when I asked the OGC to please give me
a few more weeks to prepare my written rebuttal and include more evidence before
they make a ruling on the RB-89. The WCB abused their discretion by denying
me Equal Protection and Due Process rights and the opportunity to submit
additional evidence and documentation for my RB-89 request for a rehearing.
[Appendix B] [Appendix H pg 11-16] [Appendix M pg 7-8]
10. No. 526254. New York Supreme Court Appellate Division Third Judicial Dept..
05-16-2019. The NYSC ruled that the Board did not abuse its discretion in
determining that it was without jurisdiction to reopen the claim because of the 7
year limit in Workers' Compensation Law § 123.
a. However, as noted in my appeal brief, clearly the 7 year limit of WCB
§ 123 violates the Constitution for Due Process, Equal Protection,
and Separation of Powers (intent of the Legislature). [Appendix A]
[Appendix H pg 17-21]
11. No. 2019-584. New York Court of Appeals. 09-10-2019. The NYCA ruled that the
motions to appeal are dismissed, without costs, upon the grounds that the order
appealed from does not finally determine the proceeding within the meaning of the
Constitution.
a. However, as noted in my appeal brief, clearly the 7 year limit of Workers'
Compensation Law § 123 violates the Constitution, and that is the ruling I
was appealing. Did the NYCA deny my Appeal As Of Right when the
issues are “within the meaning of the Constitution”? Their ruling has
no explanation of how the NYCA reached their conclusion. [Appendix C]
Page 12 of 55
TABLE OF CONTENTS
MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
l
AFFIDAVIT OR DECLARATION
2
PETITION FOR WRIT OF CERTIORARI
7
QUESTIONS PRESENTED
8
LIST OF PARTIES
10
RELATED CASES
11
TABLE OF CONTENTS
13
INDEX TO APPENDICES
15
TABLE OF AUTHORITIES CITED
16
OPINIONS BELOW
18
JURISDICTION
19
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
20
STATEMENT OF THE CASE
21
REASONS FOR GRANTING THE PETITION
25
Section 1
25
#1 - WCL § 123 vs. Article 8-A and NYL Intent
25
#2 - WCB and OGC Violated My Due Process Rights
30
#3 - Rules of the Game Changed After the Game was Over
31
#4 - My Article 8-A Case was Not "Truly Closed"
31
,
#5 - WCB was "Prejudice to the Claimant"
32
#6 - WCL § 164: WCB Never Set Date of Disablement
32
#7 - WCB Never Considered WCL § 165
32
#8 - WCL § 1 et seq.: WCB Must Favor Injured Claimant
32
33
Section 2
#9 - WCB Chair Beloten Confirmed My Article 8-A Location
33
#10 - WCB Adds "Ground Zero" and "Authorized Entity/Agency"
33
#11 - Article 8-A Legislators Voted 138-0 with No "Ground Zero" nor "Authorized Entity/Agency"
34
#12 - US Constitution - Separation of Powers
35
#13 - Matter of Hazan v. WTC Volunteer Fund - 2014
37
Page 13 of 55
#14 - Article 8-A Legislators Intent of Liberal Interpretation
38
#15 - "Distinction Without a Difference"
39
#16 - "Common-Sense Viewpoint" Standard
40
#17 - Location is Not "Occupational Disease"
41
#18 - Centennial Booklet - Top 10 Decisions by Appellate Courts
44
#19 - Historic Occupational Disease Case
44
#20 - Historical Event 9-11 Case
44
45
Section 3
#21 - WCB Violated Stare Decisis
45
#22 - Intelligent & Meaningful Judicial Review
45
#23 - WCB Violated the US Constitution
46
#24 - WCB used "Fruit of the Poisonous Tree"
46
#25 - U.S. Code § 706: Scope of Review
47
#26 - Constitutional-Fact Doctrine
47
#27 - Chevron, Auer, and Skidmore deference
47
#28 - US Court of Appeals Rulings
47
#29 - SCOTUS Rulings
48
#30 - SCOTUS Rulings of Special Hazard Zones Near Employment
50
Summation
52
CONCLUSION
54
PROOF OF SERVICE
55
Page 14 of 55
INDEX TO APPENDICES
APPENDIX A - No. 526254. New York Supreme Court Appellate Division Third Judicial
Dept.. 05-16-2019.
APPENDIX B - No. G110 9023. Workers’ Compensation Board. 01-19-2018.
APPENDIX C - No. 2019-584. New York Court of Appeals. 09-10-2019.
APPENDIX D - No. 2017-783. New York Court of Appeals. 10-19-2017.
APPENDIX E - No. 523341. New York Supreme Court Appellate Division Third Judicial
Dept.. 06-15-2017.
APPENDIX F - No. 523341. New York Supreme Court Appellate Division Third Judicial
Dept.. 03-30-2017.
APPENDIX G1.
2.
3.
4.
5.
No. G110 9023. Workers’ Compensation Board. 05-12-2016.
No. GllO 9023. Workers’ Compensation Board. 02-05-2016.
No. GllO 9023. Workers’ Compensation Board. 09-29-2015.
No. GllO 9023. Workers’ Compensation Board. 03-10-2015.
No. GllO 9023. Workers’ Compensation Board. 12-16-2014.
APPENDIX H - My legal brief (without the Appendix) submitted on 08-29-2018 to the NY
Supreme Court Appellate Division Third Judicial Dept.. No. 526254.
APPENDIX I - My legal brief (without the Appendix) submitted on 06-07-2019 to the NY
Court of Appeals. No. 2019-584.
APPENDIX J 1.
2.
3.
4.
Workers’ Compensation Board form: RB-89 (09-16).
Workers’ Compensation Board form: WTC-12 (11-13).
Workers’ Compensation Board form: C-3 (1-11).
Workers’ Compensation Board form: WTCvol-3 (03-17).
APPENDIX K - Relevant pages of the NY WCB Centennial Booklet.
APPENDIX L - NY Daily News interview of ASPCA worker 9-11 WCB claim.
APPENDIX M - 2017-2018 emails about RB-89 rehearing and WTCvol-3 form.
Page 15 of 55
TABLE OF AUTHORITIES CITED
PAGE NUMBER
CASES
1. Alonzo v. NYC Dept, of Probation, 72 N.Y.2d 662 (1988) - pg 35
2. Auer v. Robbins, 519 U.S. 452 (1997) Federal Court - pg 47
3. Bender v. Jamaica Hospital, 40 NY 2d 560 (1976) - pg 37
4. Bountiful Brick Co. v. Giles, 276 U.S. 154 (1928) SCOTUS Court - pg 51
5. Caldas v. 86 Alda Restaurant and WCB, NYSC 167 A.D.2d 594 (1990) - pg 24
6. Capital IQ, 2012 NY Wrk Comp LEXIS 3749, WCB #00345281 - pg 34
7. Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) SCOTUS Court - pg 47
8. Christensen v. Harris County, 529 U.S. 576 (2000) SCOTUS Court - pg 49
9. Con Edison, 2008 NY Wrk Comp LEXIS 1247, WCB #00633043 - pg 34
10. Cucci v. Rexers Tang Soo Do Karate Aca., NYSC 34 A.D.3d 887 (2006) - pg 24
11. Cudahy Packing Co. v. Parramore, 263 U.S. 418 (1923) SCOTUS Court - pg 50-51
12. Dinelle v. Workshop Inc and WCB, NYSC 181 A.D.2d 969 (1992) - pg 24
13. Doctors Council v. NYCERS, 71 N.Y.2d 669 (1988) - pg 36
14. Dynamex Ins, 2013 NY Wrk Comp LEXIS 11957, WCB #00109840 - pg 34
15. Employer: EH&S Pro Staffing, G120 4942, 2016 WL 2607570 NY WCB - pg 29
16. Employer: NY State Police, G099 9174, 2015 WL 4549347 - pg 29
17. Employer: WTC Volunteer, AA05 0013, 2016 WL 5866243 NY WCB - pg 29
18. Erie R. Co. v. Winfield, 244 U.S. 170 (1917) SCOTUS Court - pg 51
19. Field Delivery Service v. Lillian Roberts, Dept of Labor, NYCA 66 N.Y.2d 516 (1985) - pg 45
20. Goldberg v. 954 Marcy Corporation, 276 NY 313 (1938) - pg 41,42,44
21. Hazan v. WTC Volunteer Fund, NYSC AD3d, 517129 (2014) - pg 37,39
22. Heckler v. Day, 467 U.S. 104 (1984) SCOTUS Court - pg 48
23. Holloway v. Merit Sys. Protection Bd., US App. LEXIS 10591 (1995) Federal Court - pg 47
24. Johannesen v. City of New York Dept, of HPD, 84 N.Y.2d 129 (1994) - pg 23,31,41,52
25. Jones v. MSPB, 256 Fed. Appx. 353 (2007) Federal Court - pg 48
26. Masse v. Robinson Co, 301 N.Y. 34 (1950) - pg 40
27. Merrill Lynch, 2012 NY Wrk. Comp. LEXIS 3861, WCB #0202479 - pg 34
28. Middleton v. Coxsackie Fac, 38 N.Y.2d 130 (1975) - pg 40
29. NYC Housing Preservation, 2012 NY Wrk Comp LEXIS 1712, WCB #00751273 - pg 34
30. NYC Transit Authority, 2009 NY Wrk Comp LEXIS 5438, WCB #00802941 - pg 34
31. PBA v. City of New York, 41 NY 2d 205 (1976) - pg 36
32. Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199 (2015) SCOTUS Court - pg 49
33. Pittston Coal Group v. Sebben, 488 U.S. 105 (1988) SCOTUS Court - pg 49
34. Richard Rosenblatt, 2012 NY Wrk Comp LEXIS 3490 WCB #00725502 - pg 34
35. Rodgers v. NYC Fire Department, NYSC AD3d, 508278 (2011) - pg 35
36. Rosier v. Derwinski, 1 Vet. App. 241 (1991) Federal Court - pg 48
37. Royal & Sun Alliance Insurance, 2008 NY Wkr Comp LEXIS 3532 - pg 34
38. Schreckinger v. York Distributors, Inc., NYSC 9 A.D.2d 333 (1959) - pg 25,26,30,31
39. Skidmore v. Swift & Co., 323 U.S. 134 (1944) SCOTUS Court - pg 47
40. Tompkins v. Morgan Stanley Dean Witter, 1 AD3d 695 (2003) - pg 44,50-51
41. Verizon, 2008 NY Wrk Comp LEXIS 7135, WCB #00711321 - pg 34
42. Williams v. City of New York, 2009 NY Slip Op 07556 [66 AD3d 1203] - pg 24,38
43. Williams v. City of New York, 89 AD3d 1182 [2011], lv denied 18 NY3d 807 [2012] Regan,
124 AD3d 994 [2015] - pg 34
Page 16 of 55
STATUTES AND RULES
1.
2.
3.
4.
5.
6.
7.
Workers’ Compensation Law Article 8-A - pg 21-51
Workers' Compensation Law § 123 - pg 21-51
Workers' Compensation Law § 165 - pg 30,32
Workers' Compensation Law § 164 - pg 30,32
Workers' Compensation Law § 162 - pg 29
Workers' Compensation Law § 161 - pg 33,37
Workers' Compensation Law § 141 - pg 37
8. RB-89 form for rehearings - 12 NYCRR 300.13 and 12 NYCRR 300.14 - pg 21-51
9. New York CPLR 5501(a)(i)(ii)(iii) and CPLR 5602(a)(l)(i) - pg 22,33,46
10. U.S. Code § 706. Scope of Review - pg 47
11. Constitutional-Fact Doctrine Law - pg 47
12. 5 U.S.C.S. § 7703(c) - pg 48
OTHER
1. United States Constitution - pg 21-52
a. Separation of Powers
b. Due Process
c. Equal Protection
2. New York State Constitution - pg 21-24,33
Page 17 of 55
IN THE
SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.
OPINIONS BELOW
[ ] For cases from federal courts:
-fee
The opinion of the United Statca Court of Appeals appears at Appendix
the petition and is
[ ] reported-atr©r,
[ ] has been designated for publication but is not yet reported; or,
[ ] is unpublished.
The opinion of the United States district court appears at Appendixthe petition and i3
ror,
[ ] reported at
[ ] has been-designated for publication but is not yet reported; or,
[ ] is unpublished:.
[X] For cases from state courts:
The opinion of the highest state court to review the merits appears at
Appendix _ A______to the petition and is
yor,
[ ] reported at
[ ] has been designated for publication but is not yet reportedyor,
[X] is unpublished.
The opinion of the___New York Court of Appeals _
appears at Appendix _ C_____to the petition and is
ror,
[ ] reported at
[ ] has been designated for publication but is-not yet reported; or,
[X] is unpublished.
1.
Page 18 of 55
court
4©
JURISDICTION
[ ] For cases from federal courts:
The date on which the United States-Court of Appeal decided my ca3c
was
[ ] No petition for rehearing was timely filed in my case.
[ ] A timely petition-for rehearing was denied-by the United States Court of
and a copy of-the
Appeals' on the following date:
—
order denying rehearing appears at Appcndix[ ] Ail extension of time to file the petition for a writ of certiorari was granted
(date)
(date) onto and including
in Application No.
At
The jurisdiction of this Court is invoked under 28 U. S. C. §1254(1).
[X] For cases from state courts:
The date on which the highest state court decided my case was _ 09/10/2019
A copy of that decision appears at Appendix _ C____.
[ ] A timely petition for rehearing was thereafter denied on the following date:
. and a copy of the order denying rehearing
appears at Appendix
[ ] An extension of-time ttrfile the-petition-for a writ of certiorari was granted
(date)
(date) on
to and including
m Application No.
-A
The jurisdiction of this Court is invoked under 28 U. S. C. §1257(a).
Page 19 of 55
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
United States Constitution
• Separation of Powers
o Article 1 - The Legislative branch
o Article 3 - The Judicial branch
• Due Process
o 5th Amendment
o 14th Amendment
• Equal Protection
o 14th Amendment
United States Federal Laws
• U.S. Code § 706. Scope of Review - www.law.cornell.edu/uscode/text/5/706
• Constitutional-Fact Doctrine Law https://definitions.uslegal.eom/c/constitutional-fact-doctrine/
• 5 U.S.C.S. § 7703(c) - www.law.cornell.edu/uscode/text/5/7703
New York State Constitution - www.dos.ny.gov/info/constitution.htm
• Article I Section 18 - [Workers' compensation] §18. Nothing contained in this
constitution shall be construed to limit the power of the Legislature to enact laws
for the protection of the lives, health, or safety of employees;
• Article III Section 1 - The Legislative power of this state shall be vested in the
senate and assembly.
New York State Laws
• New York CPLR 5501(a)(i)(ii)(iii) and CPLR 5602(a)(l)(i) https://nycourts.gov/ctapps/forms/civiloutline.pdf
• 12 NYCRR 300.13 and 12 NYCRR 300.14 and RB-89 form for rehearings www.wcb.ny.gov/content/main/SubjectNos/sn046_940.jsp
• New York Workers’ Compensation Law (WCL) www.nysenate.gov/legislation/laws/WKC
o WCL Article 8-A - www.nysenate.gov/legislation/laws/WKC/A8-A
o WCL § 123 - www.nysenate.gov/legislation/laws/WKC/123
o WCL § 165 - www.nysenate.gov/legislation/laws/WKC/165
o WCL § 164 - www.nysenate.gov/legislation/laws/WKC/164
o WCL § 162 - www.nysenate.gov/legislation/laws/WKC/162
o WCL § 161 - www.nysenate.gov/legislation/laws/WKC/161
o WCL § 141 - www.nysenate.gov/legislation/laws/WKC/141
Page 20 of 55
STATEMENT OF THE CASE
As required by Rule 14(g)(i) of the SCOTUS: The following federal questions sought to be
reviewed were raised in the New York State lower courts and appellate courts. They were
raised in my legal briefs submitted to those courts. I have included two of those appellate
briefs in Appendixes H and I of this petition. The New York courts passed on the
Constitutional issues I raised in my briefs. The federal questions were timely and properly
raised and the SCOTUS has jurisdiction to review the judgment on a Writ of Certiorari.
• I did not cite the following in my prior briefs because these issues relate to the New
York Appellate Court rulings instead of the Board: U.S. Code § 706 Scope of review,
Constitutional-Fact Doctrine, Chevron/Auer/Skidmore deferences, the Federal and
SCOTUS court cases cited in this petition brief, and 5 U.S.C.S. § 7703(c).
Note: As the Petitioner-Appellant, I am representing myself without an attorney or any
legal assistance. I am not an attorney and I have never taken law classes or training. I
apologize if this document does not perfectly conform to the requirements of the court. I
also apologize if my emotions, stress, and health problems cause me to write anything that
a lawyer or judge would consider inappropriate for a courtroom legal brief.
• Strikethrough font styles enclosed in brackets are added to show comparisons of
important court precedent cases vs. my case. Example: volunteer [employee]
Abbreviations used in this Petition and my New York appeal briefs [Appendix H and I]:
WCL = New York Workers’ Compensation Law (section §)
o www.nysenate.gov/legislation/laws/WKC
RB-89 = 12 NYCRR 300.13 regulations effective October 3, 2016 for Workers’
Compensation Board Administrative Review and Applications for Reconsideration.
The RB-89 (09-16) form is for reopening/rehearing requests.
o www.wcb.ny.gov/content/main/SubjectNos/sn046_940.jsp
WCL § 123 = Jurisdiction to reopen Workers’ Compensation claims.
o www.nysenate.gov/legislation/laws/WKC/123
»- Article 8-A = Article 8-A law for the World Trade Center Site rescue, recovery and
clean-up operations for New York Workers' Compensation
o www. ny s en ate. gov/le gisl ation/laws/WKC/A8 - A
5> WTC Site = Article 8-A law - Section 161 defines the “World Trade Center Site” as
anywhere below a line starting from the Hudson River and Canal Street; east on
Canal Street to Pike Street; south on Pike Street to the East River; and extending
to the lower tip of Manhattan.
o www. ny senate. gov/legislation/la ws/WKC/161
Ground Zero = The WCB added this restriction which requires injured workers
(employees or volunteers) to work at Ground Zero in order to qualify for workers’
compensation benefits under Article 8-A. "Ground Zero" is the site of the former
WTC Twin Tower buildings which were destroyed in the September 11, 2001
terrorist attacks. This occupies a much smaller area than the area defined as the
Page 21 of 55
“World Trade Center Site” in the Article 8-A law passed by the NY Legislature. The
former “Ground Zero” is now a 9-11 memorial and museum,
o www.911memorial.org/
»- Authorized entity/agency = The WCB added this restriction which requires
injured workers (employees or volunteers) to be affiliated/registered with an
authorized entity or agency in order to qualify for workers’ compensation
benefits under Article 8-A. This was overturned by the New York Supreme Court
ruling in the Matter of Hazan v. WTC Volunteer Fund in 2014. Examples of an
authorized entity/agency would be a company hired by the government to help with
the 9-11 cleanup work or a volunteer organization like the Red Cross.
>■ WTC HP = World Trade Center Health Program
o www.cdc.gov/wtc/index.html
>- VCF = September 11th Victim Compensation Fund
o www.vcf.gov/
WCB = Workers’ Compensation Board
o www.wcb.ny.gov/
>- OGC = WCB Office of General Counsel
>- NYL = New York Legislature/Legislators (legislative branch/lawmakers)
o www.nyassembly.gov/
>- NYSC = New York Supreme Court - Third Department
o www.nycourts.gov/ad3/
> 'NYCA = New York Court of Appeals
o www.nycourts.gov/ctapps/
The Constitutional issues of this case can have a substantial impact nationwide on
Workers’ Compensation injured worker claims. The main points of this case are as follows:
1. Workers’ Compensation Board uses the 96 year old WCL § 123 law with its 7 year
limit from the “date of accident” to deny rehearing requests for 9-11 rescue,
recovery and cleanup workers. By law the date of accident for all Article 8-A claims
is from September 11, 2001 through September 11, 2002, which is 17 years ago.
Therefore, the 7 year limit violates both the US and NY Constitutions, the purpose
of the Article 8-A statute, and the intent of the New York Legislature.
a. I appealed this lower court decision but the appellate courts passed on the
Constitutional issues. In addition, my NYCA appeal brief cites the rules of
that court, CPLR 5501 (a)(i)(ii)(iii) and CPLR 5602(a)(l)(i): An appeal from a
final Appellate Division order brings up for review prior nonfinal orders and
judgments that necessarily affect the final order.
b. CPLR 5501(a)(i)(ii)(iii) and CPLR 5602(a)(l)(i) applies to the WCB court
rulings (prior nonfinal orders and judgments from 2014-2016) that denied my
Article 8-A claim, and also the WCB court rulings that denied my RB-89
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rehearing request (2018-2019). This is the same situation for all injured
workers that file rehearing requests for any Workers’ Compensation claim,
and not just Article 8-A claimants. The prior rulings for all Workers’
Compensation claims directly affect the final orders and judgements by
courts for any rehearing requests. This can have a substantial impact
nationwide on Workers’ Compensation injured worker claims.
2. The Workers’ Compensation Board uses “Ground Zero” and/or “Authorized
entity/agency” restrictions in their rulings for 9-11 rescue, recovery and cleanup
workers. Those restrictions are not in the text of the Article 8-A statute. This
violates both the US and NY Constitutions, the plain meaning of the text in the
Article 8-A statute, and the intent of the New York Legislature.
a. There are many Workers’ Compensation court rulings for Article 8-A claims.
Any claims filed by injured workers who did 9-11 rescue, recovery and
cleanup work at “Ground Zero” or for an “authorized entity/agency”are almost
always approved. To the contrary, any claims filed by injured workers who did
9-11 rescue, recovery and cleanup work in the area defined by the Article 8-A
law as the “World Trade Center Site”, but not at “Ground Zero” nor for an
“authorized entity/agency”, are always denied by the WCB court.
Question: Whv would the WCB add “Ground Zero” and “Authorized entity/agency”
restrictions that violate the Constitution?
Answer: The New York Court of Appeals explained it well in a 1994 ruling:
Matter of Johannesen v. City of New York Dept, of HPD, 84 N.Y.2d 129 (1994), (also cited in
WCB Centennial Book [Appendix K]):
• “Finally, in a policy-based argument, appellant, [respondent] suggests that
recovery here will open floodgates and make every allergic reaction, common cold or
ordinary ailment compensable. This argument is often advanced when
precedent and analysis are unpersuasive.”
In the months following the September 11, 2001 terrorist attacks, I was involved in some
cleanup and recovery work as both an employee and volunteer. In 2001 the office building
I worked in was located less than 100 yards away, and in direct line of sight, to the former
World Trade Center (WTC). When the Twin Towers collapsed on 9-11, many windows were
broken from flying debris and those rooms got covered with toxic dust and debris.
I returned to my work office building days after September 11, 2001 and I spent 6-8 hours
helping with the cleanup work. I cleaned up a lot of toxic dust and debris for several days.
My cleanup work took place in an office building located next to “Ground Zero” and inside
the area defined as the “World Trade Center Site” by the Article 8-A law. In addition, I
Page 23 of 55
volunteered often to bring drinks and snacks to workers at Ground Zero. I am currently a
patient of the World Trade Center Health Program because I have qualifying health
conditions due to my exposure to toxic dust, debris and aftermath effects of 9-11.
This qualifies me as a World Trade Center Site cleanup/recovery worker/volunteer under
Article 8-A law passed by the NY Legislature. The facts presented in my NYSC and NYCA
appeals show that the WCB court rulings denying my Article 8-A claim, and then denying
my RB-89 request for a rehearing, were unconstitutional, arbitrary, capricious and an
abuse of discretion. Those decisions should be reversed to uphold the United States
Constitution, the text of the Article 8-A statute, and the intent of the Legislature.
The New York courts passed on the Constitutional issues I raised in my briefs.
As a result, the New York court rulings in this case do not address the violations
of the Constitution for Separation of Powers, Due Process and Equal Protection.
Therefore, the prior court rulings in this case do not meet the standard of “intelligent and
meaningful judicial review” because the violations of the US Constitution were never
addressed nor mentioned in those court decisions. The “intelligent and meaningful judicial
review” standard for New York Appellate court decisions is cited in many NY Workers’
Compensation cases, such as:
• Matter of Caldas v. 86 Alda Restaurant and WCB, NYSC 167 A.D.2d 594 (1990)
• Matter of Dinelle v. Workshop Inc and WCB, NYSC 181 A.D.2d 969 (1992)
• Matter of Cucci v. Rexers Tang Soo Do Karate Aca., NYSC 34 A.D.3d 887 (2006)
The following reference is cited often in NY Workers’ Compensation Article 8-A court
rulings. This citation makes it clear that the New York Legislature intended the
Article 8-A legislation to be liberally construed by the courts.
Matter of Williams v. City of New York, 2009 NY Slip Op 07556 [66 AD3d 1203]:
• “Workers' Compensation Law article 8-A was enacted "to remove statutory obstacles
to timely claims filing and notice for latent conditions resulting from hazardous
exposure for those who worked in rescue, recovery or cleanup operations following
the World Trade Center September 11th, 2001 attack" (Senate Mem in Support,
2006 McKinney's Session Laws of NY, at 1915; see Minkowitz, Practice
Commentaries, McKinney's Cons Laws of NY, Book 64, Workers' Compensation Law, ■
art 8-A, at 488). It is undisputed that this legislation was intended to be
liberally construed to provide a potential avenue of relief for workers and
volunteers suffering ill health as a result of their efforts in the aftermath
of the terrorists' attacks. The liberal intent of the statute is reflected by
the fact that the Legislature has amended the law twice to extend the
deadline for claimants to file for coverage (see L 2008, ch 489, § 18; L 2007, ch
199, § 1; see generally Matter of Smith v Tompkins County Courthouse, 60 NY2d
939, 941 [1983] [stating the general rule that the Workers' Compensation Law is to
be liberally construed]).”
Page 24 of 55
REASONS FOR GRANTING THE PETITION
Section 1
#1 - WCL § 123 vs. Article 8-A and NYL Intent
[Appendix H pg 17-21]
SUMMARY POINT 1 - WCL § 123 law with its 7 year limit:
• The 96 year old WCL § 123 law with its 7 year limit from the “date of accident”,
conflicts with the intent of the NY Legislature (NYL) for the new Article 8-A laws
because the date of accident for claimants is 2001-2002, which is 17 years ago. This
violates Equal Protection and Due Process rights of all Article 8-A claimants
because it prevents RB-89 rehearing approvals before the initial Article 8-A
•
•
•
•
claims are ever filed.
The seven-year limit in WCL § 123 must be changed for all Article 8-A claims. Why?
Because there are no stale Article 8-A claims, which is the opposite of what the 7
year limit of WCL § 123 was enacted for. The government itself admits there are no
stale Article 8-A claims by continually expanding the “qualifying conditions” and
extending the Article 8-A filing deadline. As a result, some claimants may not have
had “qualifying conditions” when they first filed their Article 8-A claims, but years
later they could develop a 9-11 related health qualifying condition. If you adjust the
seven-year limit in WCL § 123 to begin from the latest Article 8-A filing deadline
date, then:
a. You eliminate the Due Process and Equal Protection violations of the
Constitution.
h. You fulfill the intent of the New York Legislature for Article 8-A.
c. You solve a lot of problems for all Article 8-A claimants.
Currently, if the Workers’ Compensation Board (WCB) makes a ruling against an
injured worker who has no qualifying conditions now, then that claimant is
blocked from reopening their claim if they get qualifying conditions in the future.
This is because the WCB has already denied their claim as not being Article 8-A
qualified. The injured worker will be blocked in the future if they file an RB-89
rehearing request because of the prior denial ruling and the 7 year limit of WCL §
123. That is clearly the opposite of the intent of the NYL which is to make sure
no claimant is denied justice under Article 8-A. Those claimants should not be
blocked by the 7 year limit of WCL § 123.
The seven-year limit of WCL § 123 will prevent rehearings of valid future
qualifying conditions for previously denied claimants. Therefore, the 7 year limit of
WCL § 123 conflicts with the Article 8-A law and the WTC-12 form.
In Matter of Schreckinger the NY Supreme Court ruled it is a “gross injustice”
to not reopen cases that violate the intent of the Legislature. The NYSC
Schreckinger ruling is definitely relevant to this case and all Article 8-A claims.
Page 25 of 55
WCL § 123 was passed almost 100 years ago and was only amended in 1940 and 1946, so
it’s a very old law (L.1922, c. 615. Amended L.1940, c. 686, § 4; L.1946, c. 113, § 52.). The
Article 8-A law is a recent law first enacted around 2006. Article 8-A claims are uniquely
different than all other Workers’ Compensation claims. That is why the NY Legislature
has expanded the qualifying conditions and extended the filing deadline multiple times
since 2006. If you are going to apply a time limit, then it needs to he seven years from the
last filing deadline date for Article 8-A claims. Why? Because the NYL has continually
extended the filing deadline of this law, so that should be the date used to begin running
the 7 year period. The NYL knows that Article 8-A claims are unique and require
special treatment by courts. The 96 year old WCL § 123 law with its seven year limit
from the “date of accident”, conflicts with the intent of the NYL for the new Article 8-A
laws because the date of accident for claimants is 2001-2002, which is 17 years ago.
Moreover, the seven year limit of WCL § 123 will prevent injured workers from getting
RB-89 rehearings for valid future qualifying conditions for previously denied claimants.
Therefore, the seven year limit of WCL § 123 conflicts with the Article 8-A law,
the WTC-12 form and the Constitution. [Appendix J2]
WCL § 123 was written almost 100 years ago and its purpose is to prevent “stale” claims
from being reopened. The problem is, there are no stale Article 8-A claims. That is
extremely significant. Why? Because the qualifying health conditions for this law are
continually updated and expanded based upon the diseases the WTC Health Program
determines are related to 9-11. Those qualifying health conditions take decades to be
identified and linked to 9-11. As I explain below in summary point 2: this is why the NYL
wants people to file claims even if they think they may have qualifying conditions in the
future. The intent of the NYL is to make sure no claimant is denied justice under Article
8-A. The NYL knows that it can take decades for the WTC Health Program to identify
new qualifying health conditions that are linked to 9-11.
In Matter of Schreckinger the NY Supreme Court ruled it is a “gross injustice” to not
reopen cases that violate the intent of the Legislature. That NYSC case is definitely
relevant to this appeal and all Article 8-A claims:
• (Note: Strikethrough font styles & brackets, such as (volunteer [employee]), are
added to show comparisons between court precedent cases vs. my case.)
Matter of Schreckinger v. York Distributors, Inc., NYSC 9 A.D.2d 333 (1959):
• “It should also be pointed out that if the Special Fund were held to be liable an
award [RB-89 requests for Article 8-A claims] could not be retroactive for a
period of more than two [seven] years immediately preceding the application to
re-open (Section 25 a, subdiv. 1) [or after the date of accident]. That would
result in a gross injustice in this case for the original injury was sustained October
29, 1946 [17 years ago in 2001], and the time consumed by litigation [appeals
Page 26 of 55
and WTC Health Program qualifying condition updates] brought the
reopening date to November -l-6ri-965 [2017]. It is difficult to believe that the
legislature contemplated such an injustice.”
SUMMARY POINT 2 - WTC-12 form and Article 8-A provisions protection:
• The NY Legislature intent is clear based upon what the WTC-12 form itself states.
[Appendix J2] All claimants should automatically be entitled to take advantage of
the provisions of Article 8-A in court for their claim (aka “Article 8-A provisions
protection”) just by registering as a “participant” with the WTC-12 form. This
does not require the WCB to rule in favor of all claims by registered participants.
Rather, the NYL want to make sure that all WTC-12 forms submitted by claimants
who believe they are “participants” in the past, present, and/or future, will get fair
judicial review and Article 8-A provisions protection.
• WCB rulings against surviving spouses also prove that all claimants must
automatically get Article 8-A provisions protection just by registering as a
“participant” with the WTC-12 form.
• I was denied Article 8-A provisions protection by the WCB court, which violates my
Equal Protection and Due Process rights under the Constitution.
As noted above, WCL § 123 conflicts with the Article 8-A law and the WTC-12 form which
is used to file Article 8-A Workers’ Compensation claims. It is very significant to note what
the WTC-12 form instruction page states, as follows: [Appendix J2]
• 1) ... to permit the Board to reopen such claims previously denied as untimely.
• 1) Article 8-A was recently amended to change the definition of “qualifying
condition” and to extend the registration deadline.
• 4e) New onset of diseases resulting from exposure as such diseases occur in the
future including...
• 5) In order for the claim of a participant in World Trade Center rescue, recovery
or cleanup operations to come within the application of Article 8-A of the Workers'
Compensation Law, the participant is required to register with the Workers'
Compensation Board ("Board").
• A) ... if you were exposed to hazardous conditions which cause you to suffer, or may
cause you to suffer in the future, from a “qualifying condition” for which you will
or may file or have filed a claim for workers’ compensation benefits.
• B Item 7) This item states your understanding that filing the Sworn Statement, and
thereby registering as a "participant,"...
The NY Legislature amended the Article 8-A law numerous times since 2006 by making it
more liberal with less restrictions, and by extending the filing deadline. The newest filing
deadline was extended to September 11, 2022. The Article 8-A law has been passed in the
Legislature by unanimous 138 “Yea” votes and zero “Nay” votes. Every time the NYL
Page 27 of 55
amended that law, they made it broader with a more liberal interpretation than
before. So the NYL intent is clear based upon those facts and what the WTC-12 form
itself states. All claimants are automatically entitled to take advantage of the
provisions of Article 8-A in court for their claim (aka “Article 8-A provisions
protection”) just by registering as a “participant” with the WTC-12 form [Appendix
J2 read #5 pg 1 and #B-7 pg 2 on the form]. This does not require the WCB to rule in favor
of all claims by registered participants. Rather, the NYL wants to make sure that all
WTC-12 forms submitted by claimants who believe they are “participants” in the past,
present, and future, will get fair judicial review and Article 8-A provisions protection.
It is very significant that the NYL wants people to file claims if they think they may have
qualifying conditions in the future. Why? Because the NYL knows that often Article 8-A
health conditions are not identified until many years later by the “participants” and/or the
WTC Health Program. So even if someone believes they may be a “participant” under
Article 8-A, and if they may have qualifying conditions in the future, then they are given
the Article 8-A provisions protection [Appendix J2 read #A pg 1 on the form]. The NYL
intent and the WTC-12 form do not say only claimants that the WCB decides are
“participants”. The clear distinction here is that the NYL wants the claimant (not the
WCB) to decide if they are, or will be, registering as a “participant”, now or in the future.
Therefore, Article 8-A provisions protection is not based on whether the WCB thinks that
you are a “participant”. This is why the words on the WTC-12 forms encourage people to
file a claim even if they have no qualifying conditions now.
As noted in summary point 1: If the WCB court rules against someone who has no
qualifying conditions now, then that claimant is blocked from reopening their claim if
they get qualifying conditions in the future. This is because the WCB has already denied
their claim as not being Article 8-A qualified. The injured worker will be blocked in the
future if they file an RB-89 rehearing request because of the prior denial ruling and the 7
year limit of WCL § 123. That is clearly the opposite of the intent of the NYL.
WCB rulings against surviving spouses also prove that all claimants are automatically
given Article 8-A provisions protection just by registering as a “participant” with the
WTC-12 form. For example, in all those cases, the WCB rulings denied surviving spouses
the opportunity to claim Article 8-A benefits because the “participant” was deceased, and
the “participant” did not sign the WTC-12 form. The WCB knows that those deceased
workers were “participants” under Article 8-A. However, the WCB denied those claims
because the law requires the “participant” worker (not the surviving spouse) to sign the
WTC-12 form in order to get Article 8-A provisions protection. Therefore, based upon these
facts and many WCB court precedent decisions: The WCB cannot have it both ways, by
denying me Article 8-A provisions protection when I did sign my WTC-12 form; but then
the WCB denies surviving spouses Article 8-A protections because the deceased
“participants” did not sign the WTC-12 forms. Those are diametrically opposite decisions
by the WCB under the same Article 8-A law. That violates the Equal Protection and
Page 28 of 55
Due Process clauses of the Constitution. Either everyone gets Article 8-A provisions
protection just by signing the WTC-12 as “participants”, and therefore provisions
protection is automatic whenever claimants register as “participants”, and thus Article
8-A provisions protection is not decided by the WCB; if this is not the case then no one
gets those protections. The WCB cannot have it both ways. As I stated above, it is very
significant to note what the WTC-12 form instruction page states, and how the WCB rules
against surviving spouses of deceased “participants”.
Matter of Employer: EH&S Pro Staffing, G120 4942, 2016 WL 2607570 NY WCB:
• “For all Article 8-A claims (i.e. for an employee or for a volunteer), WCL § 162
requires the filing of a registration statement by the participant in the World
Trade Center rescue, recovery and clean-up operation, which was not done by the
decedent in this case. Furthermore, the Board has held that a surviving spouse
of a deceased employee is not a party who may file a WTC-12 form under
WCL § 162, as there is no provision in WCL § 162 or elsewhere in Article 8-A
for the filing of a registration statement by anyone other than the
participant. As such, there is no basis on which this claim could be
considered under Article 8-A, as there has been no WTC-12 form filed by
the decedent (see Matter of New York State Police, 2015 NY Wrk Comp G0999174).
• The filing of a WTC-12 form does not constitute the filing of a Workers’
Compensation claim and there is no requirement that a participant in World
Trade Center rescue, recovery and clean-up operations register as such with the
Board in order to file a claim for his or her compensable injuries. However, the
consequence of failing to register is that the participant will not be
entitled to take advantage of the provisions of Article 8-A in prosecuting
his or her claim (see Matter of Verizon, 2009 NY Wrk Comp 00712822).”
Matter of Employer: WTC Volunteer, AA05 0013, 2016 WL 5866243 NY WCB:
• “The Board has promulgated the WTC-12 form, which is to be signed by the
participant in World Trade Center rescue, recovery and clean-up operations, and
filed with the Board, in order to register his or her participation ...”
Matter of Employer: NY State Police, G099 9174, 2015 WL 4549347:
• “The November 13, 2013, amendment of Article 8-A did not modify the procedure
for filing a WTC-12 form to include the filing of a registration form by
someone other than the workers and volunteers who actually participated
in World Trade Center rescue, recovery and clean-up operations. WCL § 162
contains specific statutory requirements for the filing of a registration form with the
Board, in order for a claimant to take advantage of the provisions of Article
8-A, ...”
Page 29 of 55
Why am I explaining this? Because the WCB denied me Article 8-A provisions
protection rights. My RB-89 rehearing request was denied based upon the seven year
limit in WCL § 123. Moreover, the WCB denial decision never mentions WCL § 164 Date
of Disablement, nor does it mention WCL § 165, (I discuss these later). I am automatically
given Article 8-A provisions protection just by registering as a “participant” with the
WTC-12 form. Yet, I was denied Article 8-A provisions protection by the WCB, which
violates my Equal Protection and Due Process rights under the Constitution.
And if all the reasons above aren’t enough... There’s the fact that WCL § 123 is the reason
why the WCB sometimes twists the facts into a pretzel to pick a “date of disablement”
solely to accommodate the 7 year time limit. If you read many court cases where a “date of
disablement” is chosen by the WCLJ or WCB, you will see how all parties involved have to
twist and distort to find a date just to accommodate the 7 year limit of WCL § 123.
So in a nutshell...
1. The 7 year limit of WCL § 123 is similar to both the elephant in the room and the
800 pound gorilla, combined.
2. Adjust the 7 year limit in WCL § 123, and you fulfill the intent of the NY
Legislature and you solve a lot of problems for all Article 8-A claimants.
3. WCL § 123 and Article 8-A are like oil and water - they don’t mix.
4. In Matter of Schreckinger the NY Supreme Court ruled that it is a “gross
injustice” to not reopen cases that violate the intent of the Legislature.
#2 - WCB and OGC Violated My Due Process Rights
[Appendix H pg 11-16] [Appendix M pg 7-11]
It’s an abuse of discretion by the WCB to prevent claimants from submitting
evidence to defend themselves. The Workers’ Compensation Board (WCB) abused their
discretion and violated my Equal Protection and Due Process rights when they prevented
me from submitting additional evidence and documentation for my RB-89 request.
The WCB also violated my Equal Protection and Due Process rights by refusing to process
and give judicial review for my Article 8-A Volunteer work and my WTCvol-3 form. Yet,
the facts of me being an Article 8-A Volunteer recovery worker were never included in my
original C-3 and WTC-12 forms of September 2014. As a result, those volunteer facts did
not receive any judicial review for the reasons I mentioned in my RB-89 documents.
The only claim that the WCB ruled on was the employee cleanup worker claim. The
Volunteer Article 8-A forms were never ruled on by the WCB.
Page 30 of 55
#3 - Rules of the Game Changed After the Game was Over
[Appendix H pg 21-22]
The intent of the NYL is to make sure no claimant is left behind under Article 8-A. The
NYL changed the “qualifying conditions” and filing deadlines multiple times when they
' passed amended and more liberal interpretations of the Article 8-A law. As a result, the
rules of the game changed after the game was over for many injured workers already
denied Article 8-A benefits under the old rules. Clearly the intent of the NYL is that
anyone denied in the past under the old laws, must now have an opportunity of
judicial review under the new law. That is why the NYL also wants potential future
claimants to file WTC-12 forms now. They want to make sure no one is denied justice
under the new rules of the law. Therefore, cases like mine must be given Article 8-A
provisions protection to reopen those claims for rehearings under the new rules. That is
required by the Matter of Schreckinger, and the Equal Protection and Due
Process clauses of the Constitution, and the "common-sense viewpoint of the average
person" (Matter of Johannesen u. City of New York DHPD 1994).
#4 - My Article 8-A Case was Not “Truly Closed”
[Appendix H pg 22-23]
The intent of the NYL is to allow anyone denied in the past under the old Article 8-A laws,
to now be given the opportunity of judicial review under the new amended law. Since my
prior appeals were determined to be filed as “untimely” by the NY Supreme Court and the
NY Court of Appeals, then my Article 8-A claim was never “truly closed” based on the
intent of the NY Legislature.
As noted in section #2 of my NYSC appeal brief: item #1 on the WTC-12 form states: “... to
permit the Board to reopen such claims previously denied as untimely.”The January 19,
2018 WCB decision states the WCLJ and Board Panel ruled my claim was “untimely” and
“time-barred” pursuant to WCL § 28, and also “WCL § 123 ... this statute depends on
whether they were truly closed...”. In addition, my case was also determined to be filed as
“untimely” by the NYSC and NYCA. The NYL want a liberal interpretation of Article 8-A.
Therefore, the NYL did not refer only to “untimely” WCB court cases, but instead their
Article 8-A intent also applies to NYSC and NYCA cases ruled as “untimely” (item #1 on
the WTC-12 form). [Appendix J2]
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#5 ■ WCB was “Prejudice to the Claimant”
[Appendix H pg 23-25]
The WCB was “prejudice to the claimant” in their January 19, 2018 decision denying my
RB-89 rehearing request. That violates my Equal Protection and Due Process rights. This
is another reason why that ruling should be reversed and my Article 8-A case should be
reopened. This is also relevant to my section above #4 - My Article 8-A Case was Not
“Truly Closed”.
#6 - WCL § 164: WCB Never Set Date of Disablement
[Appendix H pg 25-26]
The January 19, 2018 WCB decision denying my RB-89 rehearing request does not state
any date of disablement as required by WCL § 164. The WCB denied me Article 8-A
provisions protection rights. That violates my Equal Protection and Due Process rights.
#7 - WCB Never Considered WCL § 165
[Appendix H pg 26-27]
The January 19, 2018 WCB decision does not mention WCL § 165. The WCB denied me
Article 8-A provisions protection rights, and my Equal Protection and Due Process rights,
because they ignored WCL § 165 when making their ruling to deny my RB-89 rehearing
request.
#8 - WCL § 1 et seq.: WCB Must Favor Injured Claimant
[Appendix H pg 28]
The WCL § 1 et seq. requires that presumptions of laws operate in favor of the
olaimant. When there is doubt, there is no doubt - because in that situation the WCB
must rule in favor of the claimant. It is clear that all the presumptions of law that the
WCB made in all the rulings related to my case, did not favor me in any decisions.
Moreover, those WCB decisions violated my Equal Protection and Due Process rights.
Page 32 of 55
Section 2
As noted above, CPLR 5501(a)(i)(ii)(iii) and CPLR 5602(a)(l)(i) apply to the WCB rulings
(prior nonfinal orders and judgments from 2014-2016) that denied my Article 8-A claim,
and also the WCB court rulings that denied my RB-89 rehearing request (2018-2019):
• An appeal from a final Appellate Division order brings up for review prior nonfinal
orders and judgments that necessarily affect the final order.
#9 - WCB Chair Beloten Confirmed My Article 8-A Location
[Appendix H pg 33]
In the 03/10/2015 WCB ruling written and signed by WCB Chairman Judge Robert E.
Beloten, he wrote the following on page 3: [Appendix G4]
• “The carrier's contention that the claimant's office location, which he lists as 86
Trinity Place, New York, NY is not a covered location under Article 8-A has no
merit. WCL 161(2) defines the 'World Trade Center site' within the meaning of
Article 8-A as ’anywhere below a line starting from the Hudson River and Canal
Street; east on Canal Street to Pike Street; south on Pike Street to the East River;
and extending to the lower tip of Manhattan.’ The claimant indicated in his WTC-12
registration form that he worked for the employer at 86 Trinity Place, New York,,
NY 10006, which is located in lower Manhattan and is within the World
Trade Center site specified in the statute.”
It was the later WCBLJ rulings that reversed this and used the WCB restrictions of
“Ground Zero” and “authorized entity/agency”, which violate the Constitution, to deny my
claim. Yet, the WCB Chairman Judge Beloten had already confirmed that my office
location cleanup work was valid under Article 8-A. It’s important to note that once I
raised this issue in my WCB court briefs, after that point the WCB (and the
carrier’s attorney) never mentioned “Ground Zero” nor “authorized
entity/agency” again in their rulings or filings for this case. However, the WCB
clearly still uses that unconstitutional restriction criteria to deny claims.
#10 - WCB Adds “Ground Zero” and “Authorized Entity/Agency”
[Appendix H pg 11-41]
The Workers’ Compensation Board uses “Ground Zero” and/or “Authorized
entity/agency” restrictions in their rulings for 9-11 rescue, recovery and cleanup workers.
Those restrictions are not in the text of the Article 8-A statute. This violates both the US
and NY Constitutions, the plain meaning of the text in the Article 8-A statute, and the
intent of the New York Legislature.
Page 33 of 55
There are many Workers’ Compensation court rulings for Article 8-A claims. Any claims
filed by injured workers who did 9-11 rescue, recovery and cleanup work at “Ground Zero”
or for an “authorized entity/agency”are almost always approved. To the contrary, any
claims filed by injured workers who did 9-11 rescue, recovery and cleanup work in the area
defined by the Article 8-A law as the “World Trade Center Site”, but not at “Ground Zero”
and/or not for an “authorized entity/agency”, are always denied by the WCB court.
An additional fact to note is that the New York City Workers’ Compensation Board website
itself states that “World Trade Center Site” and “Ground Zero” are clearly different
locations and definitions for 9-11 related disability and death claims. Here are some
examples of WCB court rulings that cite Ground Zero in their written decisions:
1. Williams v. City of New York, 89 AD3d 1182 [2011], lv denied 18 NY3d 807 [2012]
Regan, 124 AD 3d 994 [2015]
2. Royal & Sun Alliance Insurance, 2008 NY Wkr Comp LEXIS 3532
3. Capital IQ, 2012 NY Wrk Comp LEXIS 3749, WCB #00345281
4. Dynamex Ins, 2013 NY Wrk Comp LEXIS 11957, WCB #00109840
5. Richard Rosenblatt, 2012 NY Wrk Comp LEXIS 3490 WCB #00725502
6. NYC Housing Preservation, 2012 NY Wrk Comp LEXIS 1712, WCB #00751273
1, Con Edison, 2008 NY Wrk Comp LEXIS 1247, WCB #00633043
8. Verizon, 2008 NY Wrk Comp LEXIS 7135, WCB #00711321
9. NYC Transit Authority, 2009 NY Wrk Comp LEXIS 5438, WCB #00802941
10. Merrill Lynch, 2012 NY Wrk. Comp. LEXIS 3861, WCB #0202479
#11 - Article 8-A Legislators Voted 138-0 with No “Ground Zero” nor
“Authorized Entity/Agency”
New York State Bill No. S08348, 06/22/2006, Votes Yea/Nay: 138/0.
•
http: / /assembly, state, ny. us/leg/?default_fld—&bn-S08348&term—2005&Summary
=Y&Actions=Y&Votes=Y&Text=Y [accessed December 1, 2015],
The Article 8-A law was written and then passed with 138 ‘Yea” votes and zero “Nay”
votes by the Legislators in the New York State Assembly. Obviously if they wanted to
exclude workers that cleaned 9-11 dust/debris inside of office buildings instead of at
Ground Zero, then they would not have voted unanimously 138-0 to pass the
Article 8-A law without that. Moreover, the NYL have never changed that during
amendments to the law over the years. The New York lawmakers knew exactly what they
were doing when they passed the Article 8-A law without the “Ground Zero” or
“authorized entity/agency” or cleanup inside office building restrictions in the law.
• Article 8-A law does not use wording that restricts cleanup work to only people who
were registered or affiliated with an authorized entity or agency.
Page 34 of 55
• Article 8-A law does not use wording that restricts cleanup work to only people who
did cleanup for a specified minimum amount of time and/or who did cleanup of a
specified minimum amount of dust and debris in the WTC site area. There are no
quantifiers nor qualifiers on the amount of time/hours nor the amount of
dust/debris that must be cleaned to qualify as a “cleanup worker” under
the Article 8-A law.
• Article 8-A law does not use wording that restricts the cleanup site to only the
debris pile located where the WTC Twin Towers once stood (aka “Ground Zero”).
#12 ■ US Constitution - Separation of Powers
[Appendix H pg 11-41]
The United States Constitution has separation of powers of the three branches of
government: Executive, Legislative, and Judicial. The WCB court ignored that when they
changed the wording and intent of the Article 8-A law by adding their “Ground Zero” and
“authorized entity/agency” restrictions for 9-11 rescue, recovery and/or cleanup workers.
Matter of Rodgers v. NYC Fire Department, NYSC AD3d, 508278 (2011):
• “Where a statute describes the particular situations in which it is to apply
and no qualifying exception is added, an irrefutable inference must be
drawn that what is omitted or not included was intended to be omitted or
excluded" (Matter of Alonzo M. v. New York City Dept, of Probation, 72 NY2d 662,
665 [1988] [internal quotation marks and citation omitted]). Here, the statute, by its
terms, limits its application to work performed at specific geographical locations. By
describing these locations with such specificity, the Legislature clearly
manifested an intention ... (see Matter of Williams v. City of New York, 66 AD3d
1203, 1206 n 4 [2009]). 2
o Footnote 2: In that regard, we note that the Retirement and Social Security
Law includes those "who repaired, cleaned or rehabilitated vehicles ... that
were contaminated by debris in the World Trade Center Site ..., regardless of
whether the work ... was performed within the World Trade Center [site]"
(Retirement and Social Security Law § 2 [36] [e] [v] [emphasis added]).”
Matter of Alonzo v. NYC Dept, of Probation, 72 N.Y.2d 662 (1988):
• “Courts should construe clear and unambiguous statutes so as to give
effect to the plain meaning of the words used (Doctors Council v. New York
City Employees' Retirement Sys., 71 N.Y.2d 669, 674-675). Where a statute
describes the particular situations in which it is to apply and no qualifying
exception is added, "‘an irrefutable inference must be drawn that what is
omitted or not included was intended to be omitted or excluded’"
(Patrolmen 's Benevolen t Assn. v. City of NY, 41 N.Y.2d 205, 208-209).”
Page 35 of 55
Matter of Doctors Council v. NYCERS, 71 N.Y.2d 669 (1988):
• “Where the statute is clear and unambiguous on its face, the legislation
must be interpreted as it exists. Absent ambiguity the courts may not
resort to rules of construction to broaden [or restrict] the scope and
application of a statute" (Bender v. Jamaica Hosp., 40 N.Y.2d 560, 561-562
[citations omitted]). "It is fundamental that a court, in interpreting a statute,
should attempt to effectuate the intent of the Legislature, and where the
statutory language is clear and unambiguous, the court should construe it
so as to give effect to the plain meaning of the words used" (Patrolmen's
Benevolent Assn. v. City of New York, 41 N.Y.2d 205, 208 [citations omitted]).'1'
• “Consideration of extrinsic factors is impermissible where the
Legislature's direction is clear; where the statute is not ambiguous when
read in context; where the plain meaning of the statute would not lead to
"‘absurd or futile results’" or even unreasonable results "‘plainly at
variance with the policy of the legislation as a whole’" (New York State
Bankers Assn. v. Albright, 38 N.Y.2d 430, 437, supra, quoting United States v.
American Trucking Assns., 310 US 534, 543-544)."
Matter of PBA v. City of New York, 41 NY 2d 205 (1976):
• “It is fundamental that a court, in interpreting a statute, should attempt to
effectuate the intent of the Legislature (Matter of Petterson v. Daystrom Corp.,
17 N. Y.2d 32, 38; see Matter of Carr v. New York State Bd. of Elections, 40 N. Y.2d
556), and where the statutory language is clear and unambiguous, the
court should construe it so as to give effect to the plain meaning of the
words used (Bender v. Jamaica Hosp., 40 N. Y.2d 560; New Amsterdam Cas. Co. v.
Stecker, 3 N. Y.2d 1; Meltzer v. Koenigsberg, 302 N. Y. 523; Matter of De Peyster, 210
N.Y. 216)."
• “Even if it would be constitutionally permissible for a statute to suspend a
judgment, nowhere is there language which would suggest this legislative
intent; nor can it be said that the language employed permits an
interpretation which would broaden [or restrict] the scope of the statute so
as to encompass such increases (see New Amsterdam Cas. Co. v. Stecker, supra;
Matter of Patrolmen's Benevolent Assn, of City of Buffalo v. City of Buffalo, 50AD2d
101). Hence, where as here the statute describes the particular situations
in which it is to apply, "an irrefutable inference must be drawn that what
is omitted or not included was intended to be omitted or excluded"
(McKinney's Cons Laws of NY, Book 1, Statutes, § 240).
• The fundamental constitutional principle of the separation of powers
among the three departments of government is included by implication in
the pattern of government adopted by the State of New York (Matter of
Gottlieb v. Duryea, 38 AD2d 634, affd 30 N.Y. 2d 807, cert den 409 US 1008). Under
this principle of separation of powers, it is fundamental that courts may
not without warrant restrict the scope of legislation in a manner that
Page 36 of 55
would thwart the legislative policy or engraft exceptions where none exist
(see Matter of People [Lawyers Westchester Mtge. & Tit. Co.], 288 N.Y. 40, 50; 9 NY
Jur, Constitutional Law, § 118).
Matter of Bender v. Jamaica Hospital, 40 NY 2d 560 (1976):
• Where the statute is clear and unambiguous on its face, the legislation
must be interpreted as it exists (McKinney's Cons Laws of NY, Book 1, Statutes,
§ 76; New Amsterdam Cas. Co. v. Stecker, 3 N. Y.2d 1; Meltzer v. Koenigsberg, 302
N. Y. 523). Absent ambiguity the courts may not resort to rules of
construction to broaden [or restrict] the scope and application of a statute
(New Amsterdam Cas. Co. v. Stecker, supra; Matter of Patrolmen's Benevolent Assn,
of City of Buffalo v. City of Buffalo, 50 AD2d 101) and must apply the plain
import of the statute (Matter of Ti'ustees of N. Y. & Brooklyn Bridge, 72 N. Y. 527).
no rule of construction gives the court discretion to declare the intent
of the law when the words are unequivocal (People ex rel. New York Cent. &
Hudson Riv. R. R. Co. v. Woodbury, 208N.Y. 421). The courts are not free to
legislate and if any unsought consequences result, the Legislature is best
suited to evaluate and resolve them (Bright Homes v. Wright, 8N.Y.2d 157).
#13 - Matter of Hazan v. WTC Volunteer Fund ■ 2014
[Appendix H pg 15-16]
The relevant facts from the NY Supreme Court decision in Matter of Hazan are identical
to this case if you replace the word “volunteer” with “cleanup worker”.
Matter of Hazan v. WTC Volunteer Fund, NYSC AD3d, 517129 (2014):
• “Here, the Board did not directly address the time, location and activity elements of
the statute; rather, the Board denied claimant's application for workers'
compensation benefits solely because claimant “did not serve under the direction of
an authorized rescue entity or volunteer [cleanup] agency [or at Ground Zero]”
and, hence, “did not meet the definition of a volunteer [cleanup worker]” within
the meaning of Workers' Compensation Law article 8-A.”
• “Here, Workers' Compensation Law § 161 does not define the term volunteer
[cleanup worker], and Workers' Compensation Law article 8-A is otherwise silent
in this regard. Affording such term its plain and ordinary meaning (see McKinney's
Cons Laws of NY, Book 1, Statutes § 232), a volunteer [cleanup and worker] is
defined as, among other things, “a person who performs a service willingly and
without pay” [“the act or process of cleaning up” “by a laborer or employee”]
(Dictionary.com, http://www.dictionary.com/browse/ volunteer [cleanup and
worker] [accessed July 15, 2016]). Noticeably absent from both Workers'
Compensation Law article 8-A and the commonly understood meaning of the word
volunteer [cleanup worker] is any requirement that such individual “serve under
Page 37 of 55
the direction of an authorized rescue entity or volunteer [cleanup] agency [or at
Ground Zero].” Accordingly, the Board's imposition of such a requirement is, to our
analysis, contrary to the plain terms of the statute.”
• “The flaw in the Board's analysis on this point is that, prior to the enactment of
Workers' Compensation Law article 8-A, several bills were circulated in the
Legislature ... Significantly, however, such language is not included in Workers'
Compensation Law article 8-A, and “the deletion of this explicit language from the
version of [Workers' Compensation Law article 8-A] that finally passed is
persuasive evidence that the Legislature rejected” the more restrictive definition of
volunteer [cleanup worker] that originally was proposed (Majewski v.
Broadalbin-Perth Cent. School Dist., 231 AD2d 102, 107 [1997], affd 91 NY2d 577
[1998]; see generally Matter of Jessica D. v. Jeremy H., 77 AD3d 87, 89-91 [2010])”
• “Finally, to the extent that the Board has consistently relied upon the subject orders
in denying benefits to volunteers [cleanup workers] who were not affiliated with
an authorized rescue entity or volunteer [cleanup] association [or at Ground
Zero], we need note only that while Workers' Compensation Law § 141 vests the
Board's chair with certain powers to administer the provisions of the Workers'
Compensation Law, it does not vest him or her with the authority to supplement or
amend duly enacted legislation. Accordingly, whatever the net effect of such orders
maybe, they “cannot overrule the statute itself’ (Matter of Russomanno v. Leon
Decorating Co., 306 NY 521, 525 [1954]). In sum, as neither the statutory language
nor the legislative history supports the Board's requirement that an individual be
affiliated with an authorized rescue entity or volunteer [cleanup] agency [or at
Ground Zero] in order to qualify as a volunteer [cleanup worker] and, hence, be
eligible for the coverage afforded under the statute, the Board's decision denying
claimant's application for benefits upon this particular ground cannot stand.2
Footnote 2: To the extent that it may be argued that the imposition of such a
requirement is necessary in order to guard against frivolous claims, the remedy
lies with the Legislature in the form of a statutory amendment.”
#14 - Article 8-A Legislators Intent of Liberal Interpretation
[Appendix H pg 17-26]
Matter of Williams v. City of New York, 2009 NY Slip Op 07556 [66 AD3d 1203]:
• “Workers' Compensation Law article 8-A was enacted "to remove statutory obstacles
to timely claims filing and notice for latent conditions resulting from hazardous
exposure for those who worked in rescue, recovery or cleanup operations following
the World Trade Center September 11th, 2001 attack" (Senate Mem in Support,
2006 McKinney's Session Laws of NY, at 1915; see Minkowitz, Practice
Commentaries, McKinney's Cons Laws of NY, Book 64, Workers' Compensation Law,
art 8-A, at 488). It is undisputed that this legislation was intended to be
liberally construed to provide a potential avenue of relief for workers and
Page 38 of 55
volunteers suffering ill health as a result of their efforts in the aftermath
of the terrorists' attacks. The liberal intent of the statute is reflected by
the fact that the Legislature has amended the law twice to extend the
deadline for claimants to file for coverage (see L 2008, eh 489, § 18; L 2007, ch
199, § 1; see generally Matter of Smith v Tompkins County Courthouse, 60 NY2d
939, 941 [1983] [stating the general rule that the Workers' Compensation Law is to
be liberally construed])."
Matter of Hazan v. WTC Volunteer Fund, NYSC AD3d, 517129 (2014):
• “It is fundamental that a court, in interpreting a statute, should attempt to
effectuate the intent of the Legislature. The starting point is always to
look to the language itself and where the language of a statute is clear and
unambiguous, courts must give effect to its plain meaning” (Matter of Joyce
[Coface N. Am. Ins. Co.-Commissioner of Labor], 116 AD3d 1132, 1133 [2014]
[internal quotation marks and citations omitted]; see Matter of Talisman Energy
USA, Inc. v. New York State Dept, of Envtl. Conservation, 113 AD3d 902, 904
[2014]), as "the text of a provision is the clearest indicator of the enactors’
intent" (Nostrom v. A.W. Chesterton Co., 15 NY3d 502, 507 [2010])."
#15 - “Distinction Without a Difference”
The 02/05/2016 WCB ruling denying my Article 8-A claim is written in a way that gives
the misleading impression that I only cleaned the equivalent of ordinary house dust in
offices. [Appendix G2] The WCB rulings for my case are clearly incorrect and misleading
when they refer to my cleanup work as “office tasks”, “office work”, and part of my “job
description”. As noted above in point #11: If the NY Legislators wanted to exclude
workers that cleaned 9-11 dust/debris inside of office buildings instead of at Ground
Zero, then they would not have voted unanimously 138-0 to pass the Article 8-A
law without that. Moreover, the Article 8-A law does not use wording that restricts
cleanup work to only people who did cleanup for a specified minimum amount of time
and/or who did cleanup of a specified minimum amount of dust and debris in the WTC site
area. There are nQ quantifiers nor qualifiers on the amount of time/hours nor the
amount of dust/debris that must be cleaned to qualify as a “cleanup worker”
under the Article 8-A law. If the NYL wanted a minimum cleanup criteria of time/labor
in the law, then they obviously would have added that - but they didn’t. Why not? As noted
above in point #14: The NYL intent is a liberal interpretation for the Article 8-A law.
As noted above in the introduction: I returned to my work office building days after
September 11, 2001 and I spent 6-8 hours helping with the cleanup work. I cleaned up a
lot of toxic dust and debris for several days. My cleanup work took place in an office
building located next to “Ground Zero” and inside the area defined as the “World Trade
Center Site” by the Article 8-A law. In addition, I volunteered often to bring drinks and
Page 39 of 55
snacks to workers at Ground Zero. I am currently a patient of the World Trade Center
Health Program because I have qualifying health conditions due to my exposure to toxic
dust, debris and aftermath effects of 9-11.
The 02/05/2016 WCB ruling states: “This is, however, a distinction without a difference”.
That is their incorrect and misleading interpretation of my cleanup work inside an office
building. Does the WCB court think that I have a frivolous 9-11 related claim? If so, then
how would they explain all the serious 9-11 related health conditions I have which have
been confirmed by the World Trade Center Health Program? I submitted over 100 pages of
my medical records to the NY courts. Those medical records prove the very serious medical
health problems I have had related to exposure to toxic dust, debris and aftermath effects
in the months following 9-11. My 9-11 related health conditions have included:
GERD, Esophageal Reflux
>- Abnormal Lung Scans
>• Migraine Headaches
>- Heart Attack (nearly fatal)
Depression
>- Heart Disease, Complex Multi-Vessel
>- PTSD (Post Traumatic Stress Disorder)
Coronary Artery Disease
>■ Panic Attacks
High Blood Pressure
>- Anxiety, Hypertension
2^ High Cholesterol
#16 - “Common-Sense Viewpoint” Standard
[Appendix H pg 4,13,21]
The NY Supreme Court has made many rulings stating that a Workers’ Compensation
injury must be determined using the common-sense viewpoint of the average
person. That is a logical, reasonable and ethical standard to use. If you apply the
“common-sense viewpoint of the average person” to the points I mention in my appeal
briefs, then it is clear that my Article 8-A claim is valid. The WCB judges did not apply
that fundamental common-sense standard when ruling on my case.
Masse v. Robinson Co, 301 N.Y. 34 (1950):
• “But such variations represent no difference as to what is the right basis for
decision of controversies of the present kind. Whether a particular event was an
industrial accident is to be determined, not by any legal definition, but by the
common-sense viewpoint of the average man. (Cf. Matter of Lurye v. Stern
Bros. Dept. Store, 275 N.Y. 182, 185.)”
Middleton v. Coxsackie Fac, 38 N.Y.2d 130 (1975):
• “Whether a particular event is an industrial accident is to be determined, not by
any legal definition, but by the common-sense viewpoint of the average
man (Matter ofKlimas v. Trans Caribbean Airways, 10 N.Y.2d 209, 216; Matter of
Schechter v. State Ins. Fund, 6 N.Y. 2d 506, 510; Matter of Masse v. Robinson Co.,
301 N.Y. 34, 37)r
Page 40 of 55
Matter of Johannesen u. City of New York Dept, of HPD, 84 N.Y.2d 129 (1994) (also cited in
the WCB Centennial Book [Appendix K])\
• “In particular, the Court has noted also that an accidental injury must be gauged by
the "common-sense viewpoint of the average [person]" (Matter of Middleton v.
Coxsackie Correctional Facility, 38 N. Y.2d 130, 134, supra; Matter of Masse v.
Robinson Co., 301 N.Y. 34, 37).”
#17 - Location is Not “Occupational Disease”
The 02/05/2016 WCB ruling denying my claim states:
• "This statement indicates that, at some point, the claimant performed an
assessment of what portion of the cleaning fell within his job description, even if
this assessment was sub-conscious. This is further illustrative of the fact that
claimant was involved in an office task and was not involved in clean-up
operations." [Appendix G2]
If the WCB court was correct in their decision, then that would mean cleaning 9-11 toxic
dust and debris in an office building was in my “job description” and an “office task”.
Therefore, based upon WCB law, my claim would be an “Occupational Disease” injury
and not an accidental injury under Workers’ Compensation law. If that were the case, then
the location of my employment would be irrelevant to the toxic exposure hazard
based upon WCB law for “occupational diseases”. Moreover, if the WCB court ruling was
correct, then my injuries and health hazard exposure would equal:
• “an occupational disease is one which results from the nature of the
employment”. (Matter of Goldberg v. 954 Marcy Corporation, 276 NY 313 (1938)
[Appendix K]
• “conditions to which all employees of a class are subject, and which produce the
disease as a natural incident of a particular occupation” (Matter of Goldberg v.
954 Marcy Corporation, 276 NY 313 (1938). [Appendix K]
Here are some examples of medical illnesses/diseases related to specific occupations that
are occupational diseases due to the “nature of the employment”:
1. Tuberculosis and hepatitis for nurses, blood processors, and related professionals
who are exposed to these diseases.
2. Disease of the heart and lungs for firemen from inhaling smoke from fires.
3. Pneumoconiosis and silicosis for occupations with exposure to coal dust.
4. Chemical poisoning (i.e.: lead, arsenic, mercury) for occupations with exposure to
those chemicals.
Geographical location is not the cause of an Occupational Disease. An
occupational disease arises from the conditions to which a specific type of worker is
Page 41 of 55
exposed. The medical illness/disease must be produced as a natural incident of a
particular occupation. For example, Asbestosis is a disease that asbestos removal workers
can get and it is the "nature of the employment" because they are exposed to asbestos
often. The risk of getting asbestosis remains the same regardless of the location
where an asbestos removal employee works. For example, the risk of getting an
asbestos related disease is the same regardless of them doing asbestos removal in New
York, NY, or Boston, MA, or Augusta, ME, or Washington, DC, or Detroit, MI, or Boise, ID,
or Lincoln, NE, or Bismarck, ND.
To the contrary, my employment and "job description" was a Managing Director of Equity
Sales in downtown Manhattan. If I was working as a Managing Director of Equity Sales in
a different location, such as any of those cities listed in my last example, then there
would be no exposure to 9-11 toxic dust/debris and therefore no risk of me getting any 9-11
related medical illnesses or diseases. Therefore, my medical illnesses/diseases cannot be
considered occupational diseases according to WCB law.
An occupational disease does not arise from a specific traumatic event, such as the 9-11
terrorist attacks. An occupational disease is a medical condition or disability that develops
over time based upon a repetitive aspect of a specific type of employment. You can
determine if an illness is an occupational disease by measuring if the condition is more
prevalent in specific groups of workers then it is in the general population. For example,
skin diseases, such as eczema, are a common occupational disease found in groups who
work with chemicals or have to wash their hands often. Another example is lung disease
which is often found in people who work in asbestos removal, or coal mine workers, or
firefighters exposed to smoke often. The location of those groups of workers is irrelevant to
the cause of the occupational disease. If they were doing the same "job description" in a
different location (different city/state), then they would still he exposed to the risks of
getting those same occupational diseases.
I was working as a Managing Director of Equity Sales in downtown New York City.
Obviously, cleaning toxic dust and debris was not a “condition to which all employees of
this class are subject, and which produce the disease as a natural incident of this
particular occupation” (as cited above in Matter of Goldberg). All WCB court rulings for
occupational diseases have very specific criteria which would apply as follows:
• It is very significant that the 02/05/2016 WCB court ruling says that my “cleaning
fell within my job description” and was an “office task”. By stating that, the WCB
court would be required to conclude (incorrectly) that my exposure to the toxic 9-11
dust/debris while cleaning offices was an Occupational Disease because it was an
“office task” and part of my “job description”. Moreover, the WCB court would
also be required to conclude (incorrectly) that my injuries are not linked to the
location of my employment in the Article 8-A World Trade Center Site area.
However, that is contrary to the facts of this case and to all WCB court rulings for
occupational diseases because my work location is the cause of my injuries.
Page 42 of 55
Cleaning toxic dust/debris inside an office building after the 9-11 terrorist attacks was
definitely not part of the “nature of my employment” nor my “job description”. For my
cleaning to be called an “office task” and part of my “job description”, then the exposure to
the toxic dust would be the same even if I did my job in a location outside the Article 8-A
WTC Site area. My claim cannot be an Occupational Disease because my injuries are due
to my employment location inside the Article 8-A WTC Site area. Therefore, by WCB
law, cleaning my office cannot be considered an “office task” nor “office work”
nor part of my “job description” because then it would be an Occupational
Disease and the employment location would be irrelevant.
The WCB rulings for occupational diseases are inextricably linked with “office tasks”,
“office work”, “job descriptions” and the “nature of the employment”. Occupational diseases
are not linked to the location of employment, such as, in the Article 8-A World Trade
Center Site area. The WCB Courts cannot have it both ways by linking an occupational
disease “job description” with the employment location. It is clear that my injuries are not
an occupational disease. What I did is clearly Article 8-A cleanup work.
I submitted the following article to the WCB court as evidence to show that the WCB
judge’s own words in a Daily News interview prove my point: [Appendix L]
• But Grodsky still came to the conclusion that DiCiacomo [Cozzi] did not suffer from
an “occupational disease” because the exposure did not “derive from the very
nature” of her [his] work as an animal rescuer [Managing Director of Equity
Sales]. “Rather, her [his] exposure arose from ‘an environmental condition specific
to the place of work,’ ” Grodsky wrote. “The dust and particulates were a result of
the environmental conditions in the area in the aftermath of the attack. If she [he]
was doing her [his] job in a different area, there would be no exposure.”
Calling the cleanup work I did an “office task” is like calling the cleanup of the same dust
at Ground Zero an “outdoor task”. It’s not logical nor reasonable and it makes no sense. As
cited in other WCB court rulings, if you apply the “common-sense viewpoint of the
average person”, then it is clear that my WCB claim is valid. Cleaning up 9-11 dust
inside of office buildings is the exact same 9-11 dust that people cleaned at Ground Zero.
So why does the WCB call my work an “office task” and their work “cleanup operations”?
To answer that you can apply the quote from the 02/05/2016 WCB decision:
“This is, however, a distinction without a difference. ” [Appendix G2]
Page 43 of 55
#18 - Centennial Booklet - Top 10 Decisions by Appellate Courts
[Appendix H pg 4,13,15,35] [Appendix K]
The Centennial Booklet of the New York State Workers’ Compensation Board contains the
“Top 10 Decisions by Appellate Courts in the Past 100 Years". That WCB Centennial
Booklet cites a number of important rulings that support my claim and I have cited those
cases in my appeal briefs:
• “The workers’ compensation system is shaped by many factors, including case law.
Here are 10 important areas of law where individual decisions impacted the
system.”
#19 - Historic Occupational Disease Case
[Appendix K]
Matter of Goldberg v. 954 Marcy Corporation, 276 NY 313 (1938):
• “In 1935 the law was amended to include “any and all occupational diseases,
contracted through any and all employments.” Goldberg set forth basic
principles still followed today. For example: ...an occupational disease is one
which results from the nature of the employment, and by nature is meant, not
those conditions brought about by the failure of the employer to furnish a safe place
to work, but conditions to which all employees of a class are subject, and
which produce the disease as a natural incident of a particular
occupation, and attach to that occupation a hazard which distinguishes it from the
usual run of occupations and is in excess of the hazard attending employment in
general.”
The relevance of the Matter of Goldberg decision to my case is explained above in point
#17 - Location is Not “Occupational Disease”.
#20 - Historical Event 9-11 Case
[Appendix H pg 35] [Appendix K]
Terrorist Attack upon the World Trade Center, September 11, 2001
Matter of Tompkins v. Morgan Stanley Dean Witter, 1 AD3d 695 (2003):
• “Claimant... emerged two blocks from Two WTC, where he worked... but certain
risks arise that constitute a nexus between the street risks and the employment.
The Board found there was a special hazard in a zone of danger at Ground
Zero, and that there was a close association between the entrance route claimant
took and the location of the work premises.”
Page 44 of 55
In addition to cleaning toxic 9-11 dust/debris in an office building, every weekday for many
months I was exposed to the toxic dust, debris and the horrible sight and smell of the WTC
debris pile because it was located less than 100 yards from my office and in direct view
from my office windows. Every weekday I went to/from work, or to lunch, or out of the
office, I had to walk right next to the WTC debris site. The WCB ruling in Matter of
Tompkins cited above, confirms there was clearly a “special hazard zone of danger
near Ground Zero” that was a close association with the “location of my work
premises” and my office cleanup.
Section 3
#21 - WCB Violated Stare Decisis
[Appendix H pg 28-29]
You fulfill the intent of the NYL only if the WCB applies the Article 8-A law to all rescue,
recovery and cleanup workers/volunteers in the “World Trade Center Site” area defined by
the statute. Instead the WCB court has applied the Article 8-A law to only those
workers/volunteers registered with authorized entities/agencies and/or who worked at
Ground Zero. If you apply a Stare Decisis analysis to every section of my NYSC appeal
brief, it is clear that the WCB court rulings should be overturned. The WCB uses
unconstitutional “Ground Zero” and “affiliated with an authorized entity/agency”
restrictions to deny valid Article 8-A claims, like my claim.
Stare Decisis importance is noted in the New York Court of Appeals ruling in Matter of
Field Delivery Service v. Lillian Roberts, Dept of Labor, NYCA 66 N.Y.2d 516 (1985):
• “Stare decisis is no more an inexorable command for administrative agencies than it
is for courts.”
#22 - Intelligent & Meaningful Judicial Review
[Appendix H pg 30-31]
If you apply an Intelligent and Meaningful Judicial Review analysis to every section
of my NYSC appeal brief, it is clear that the WCB court rulings should be overturned. The
WCB rulings violate the Constitution for Separation of Powers, Equal Protection and Due
Process.
Page 45 of 55
#23 - WCB Violated the US Constitution
[Appendix H pg 31-32]
If you apply a Constitutional analysis to every section of my NYSC appeal brief, it is
clear that the WCB court decisions should be overturned. The WCB rulings violate the
Constitution for Separation of Powers, Equal Protection and Due Process.
#24 ■ WCB used “Fruit of the Poisonous Tree”
[Appendix H pg 32-35]
The legal doctrine of “Fruit of the Poisonous Tree” should apply to WCB decisions that
deny rehearing requests when those denials are based on prior court decisions where the
claimant raised violations of the Constitution and/or the intent of the Legislature.
If the WCB is allowed to use prior decisions to deny RB-89 rehearing requests, then the
claimants must be allowed to use that same evidence from prior decisions to
defend themselves in appeals courts. Denying claimants that right would be equivalent
to giving the government both a sword and a shield to use against injured workers who
have no way to defend themselves. This is especially egregious if claimants have raised
constitutional issues in prior hearings. If you give the government a sword and a
shield to use against injured workers, then it is required by the US Constitution
to give that same sword and shield to the injured workers so they can defend
themselves in court. I wrote in my NYSC appeal brief of “Fruit of the Poisonous Tree”:
a. If the roots of the tree [2014-2016 WCB decisions] are poisonous fviolate
the Constitution/, then all the tree branches and fruit [WCB RB-89 denial
decision which was based on all those prior WCB decisions] are poisonous
[violate the Constitution].
You cannot have “intelligent and meaningful judicial review” when the WCB
uses unconstitutional restrictions to deny valid Article 8-A claims, and then they
use those same unconstitutional decisions to deny RB-89 rehearing requests. To
uphold the January 19, 2018 WCB RB-89 denial decision, you would need to ignore all
the violations of the Constitution by the WCB in their rulings which are the
basis and foundation for their RB-89 denial decision.
This also demonstrates the importance of what I noted above about prior nonfinal orders:
CPLR 5501(a)(i)(ii)(iii) and CPLR 5602(a)(l)(i) apply to the WCB rulings (prior nonfinal
orders and judgments from 2014-2016) that denied my Article 8-A claim, and also the
WCB court rulings that denied my RB-89 rehearing request (2018-2019):
• An appeal from a final Appellate Division order brings up for review prior nonfinal
orders and judgments that necessarily affect the final order.
Page 46 of 55
#25 - U.S. Code § 706: Scope of Review
The New York Appellate Courts failed to follow the requirements for a review court as
stated in U.S. Code § 706: Scope of Review for my case.
#26 - Constitutional-Fact Doctrine
The New York Appellate Courts failed to follow the requirements for a review court as
stated in the Constitutional-Fact Doctrine for my case.
#27 - Chevron, Auer, and Skidmore deference
The New York Appellate Courts improperly gave Chevron deference, Auer deference,
and/or Skidmore deference to the administrative actions of the Workers’ Compensation
Board rulings for my case. [Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984)], [Auer v.
Robbins, 519 U.S. 452 (1997)], [Skidmore v. Swift & Co., 323 U.S. 134 (1944)]
#28 - US Court of Appeals Rulings
Holloway v. Merit Sys. Protection Bd., 1995 U.S. App. LEXIS 10591 (1995) Federal Court
• Overview: The Initial Decision (ID) was based on the Office of Worker's
Compensation Programs' (OWCP) rejection of petitioner's claim that he had
sustained a compensable injury. ... On March 14, 1994 [November 10, 2017],
petitioner requested that the Board reopen his dismissed appeal, contending the
Board now had jurisdiction [under the recently extended Article 8-A law with
updated qualifying conditions, and in the interest of justice as noted in
WCL § 300.14], The Board treated this request as a petition for review of the ID
and dismissed the petition as untimely, ... For the same reason, the Board also
declined to exercise its authority to reopen and reconsider the ID [process and
give judicial review for the petitioner's WTCvol-3 volunteer claim].
However, the Board abused its discretion in determining not to reopen the case. The
OWCP reversal [recently extended Article 8-A law with updated qualifying
conditions, and the WTCvol-3 volunteer claim] provided the Board with
jurisdiction over petitioner's appeal, allowing petitioner's case to finally be heard on
the merits [under the new rules]. To deny petitioner the opportunity to have his
case heard on the merits under these circumstances would be unreasonable.
Page 47 of 55
Rosier v. Derwinski, 1 Vet. App. 241 (1991) Federal Court
• Overview: The court held that the claimant's filing of a reconsideration motion [on
November 10, 2017 for an RB-89 rehearing] with the board during the 120-day
judicial appeals period [, after the October 19, 2017 NYCA ruling,] postponed
the start of that appeals period [for the 7 year limit of the WCL § 123 law] until
the board mailed to [received from] the claimant notice of its denial of that motion
[the Article 8-A filing of the WTC-12 and C-3 forms on September 4, 2014]. A
new 120-day [7 year] period began to run on the date on which the board mailed to
the claimant notice of its denial-of the motion to reconsider [received the Article
8-A filing forms]. Applying this tolling concept to the facts of the case, the court
concluded that the claimant's May 11, 1090, NOA [November 10, 2017
application for an RB-89 rehearing] was rendered timely under § 4066(a)
[Article 8-A] because he had until July 5, 1990 [September 4, 2021], to file a
timely NOA [RB-89] regarding the original board decision.
The New York Workers' Compensation Board rulings denying my Article 8-A claim and
RB-89 rehearing request, were arbitrary, capricious and an abuse of discretion. The New
York Appellate Courts failed to follow (1)(2)(3) of 5 U.S.C.S. § 7703(c).
Jones v. MSPB, 256 Fed. Appx. 353 (2007) Federal Court
• Standards of Review, Abuse of Discretion: The scope of the United States Court of
Appeals for the Federal Circuit's review in an appeal from a decision of the United
States Merit Systems Protection [Workers’ Compensation] Board is limited. The
Federal Circuit must affirm the Board's decision unless it was: (1) arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; (2)
obtained without procedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence. 5 U.S.C.S. § 7703(c).
#29 - SCOTUS Rulings
Heckler v. Day, 467 U.S. 104 (1984) SCOTUS Court
• Overview: The US Supreme Court vacated and held that the concern that
mandatory deadlines would jeopardize the quality and uniformity of agency
decisions had prevailed over considerations of timeliness. The Court held that
legislation enacted by Congrc33 [NY Legislature] was fully consistent with the
repeated rejection of proposals for mandatory [“date of accident”] deadlines and
with efforts by Congress [NY Legislature] to ensure quality and uniformity in
agency adjudication. With these clear intentions, the courts did not have the
authority to impose the repeatedly rejected deadlines [that violate the
Constitution by the WCL § 123 with a 7 year limit from “date of accident”].
Page 48 of 55
The Court vacated the judgment and found that Congress [NY Legislature] had
declined to impose [“date of accident”] deadlines on the administrative process
under the Social Security Act [Article 8-A law for rehearings when they
updated this law multiple times].
• Persuasive evidence of the intention of Congrc33 [NY Legislature] is found in the
distinction it has made between the resolution of Supplemental Security Income
[“World Trade Center Site” and no mention of “Ground Zero” in the Article
8-A law]
This provision makes two things clear: Congress [NY Legislature]
will establish hearing deadlines when it deems them appropriate [but not a 7 year
limit from the 2001 “date of accident” which violates the Constitution] and
Congress [NY Legislature] has determined that it is inappropriate to subject
disputed disability claims to mandatory deadlines [which is why the legislative
history shows a liberal interpretation of this law].
Pittston Coal Group v. Sebben, 488 U.S. 105 (1988) SCOTUS Court
• Overview: SCOTUS held that the interim Labor regulations [WCB restrictions of
Ground Zero and Authorized entity/agency] applicable to claims seeking black
lung [Article 8-A] benefits were impermissibly restrictive under 30 U.S.C.S. §
002(f)(2) [the Constitution]. ... The Court found that the Labor [WCB] criteria
were more restrictive because under the [Article 8-A law definition of “World
Trade Center Site” there is no mention of Ground Zero nor Authorized
entity/agency] ... The Court rejected the Secretary's contention that "criteria" was
ambiguous, and that her resolution of that ambiguity was reasonable and ruled the
statute would not bear the meaning the Secretary had adopted.
Perez u. Mortg. Bankers Ass'n, 135 S. Ct. 1199 (2015) SCOTUS Court
o Christensen u. Harris County, 529 U.S. 576 (2000) SCOTUS Court
• Standards of Review, Rule Interpretation: The US Supreme Court's decision in
Christensen v. Harris County did not address a change in agency interpretation.
Instead, the Supreme Court there refused to give deference to an agency’s
interpretation of an unambiguous regulation [like Article 8-A], observing that to
defer in such a case would allow the agency to create de facto a new regulation
[which would violate the Constitution], Put differently, Christensen held that
the agency interpretation at issue was substantively invalid because it conflicted
with the text of the [Article 8-A] regulation the agency purported to interpret.
• Supreme Court Justice Thomas, concurring in the judgment:
o “But we have not consistently exercised the judicial check with respect to
administrative agencies. Even though regulated parties have repeatedly
challenged agency interpretations as inconsistent with existing regulations,
we have just as repeatedly declined to exercise independent judgment as to
those claims. Instead, we have deferred to the executive agency that both
promulgated the regulations and enforced them. Although an agency’s
Page 49 of 55
interpretation of a regulation might be the best interpretation, it also might
not. When courts refuse even to decide what the best interpretation is under
the law, they abandon the judicial check. That abandonment permits
precisely the accumulation of governmental powers that the Framers warned
against. See The Federalist No. 47, at 302 (J. Madison),
o The Judicial Branch is separate from the political branches for a reason: It
has the obligation to apply the law to cases and controversies that come
before it, and concerns about the popular esteem of individual judges - or
even the Judiciary as a whole - have no place in that analysis. Our system of
Government could not long survive absent adherence to the written
Constitution that formed it.”
#30 - SCOTUS Rulings of Special Hazard Zones Near Employment
As noted above in point #20 in the historic 9-11 WCB case of Tompkins v. Morgan Stanley
Dean Witter, (2003), for NY WCB Article 8-A cases: Certain risks arise that constitute a
nexus between the street risks and the employment as a “special hazard zone of
danger near Ground Zero”. This is also confirmed in the following SCOTUS rulings:
Cudahy Packing Co. v. Parramore, 263 U.S. 418 (1923) SCOTUS Court
• Overview: On review, the court found that the location of the employer's plant
[office building] was situated such that crossing the railroad tracks [World
Trade Center Site toxic dust and debris] was a necessity. Therefore, the
employee had no other choice than to go over the railroad tracks [9-11 toxic dust
and debris area] in order to get to his work. The court concluded that such
exposure to the railroad tracks [toxic dust and debris] resulted in a degree of
exposure to the common risk beyond that to which the general public was subjected.
Furthermore, the employee's employment contemplated his entry upon and
departure from the premises as much as it contemplated his working there.
Therefore, the court concluded that the employee's accident arose out of the course
of his employment. The supreme court's decision was affirmed.
• “The fact that the accident happens upon a public road or at a railroad crossing
[9-11 toxic dust and debris area] and that the danger is one to which the general
public is likewise exposed is not conclusive against the existence of such causal
relationship, if the danger be one to which the employee, by reason of and in
connection with his employment, is subjected peculiarly or to an abnormal degree.”
• “So where a workman was employed in a place and under circumstances exposing
him to more than ordinary risk of injury by lightning [or toxic dust and debris],
such an injury was held to be one arising out of the employment. Andrew v.
Failsworth Industrial Society, Limited, [1904], 2 K.B. 32.”
• “The court said: “If it is the normal risk merely which causes the accident, the
answer must be that the accident did not arise out of the employment. But if the
Page 50 of 55
position which the workman must necessarily occupy in connection with his work
results in excessive exposure to the common risk (cf. Ismay's case, [1908] A.C. 437;
Rodger, 1912 S.C. 584), or if the continuity or exceptional amount of exposure
aggravates the common risk (cf. M'Neice, 1911 S.C. 12; Warner [1912] A.C. 35), then
it is open to conclude that the accident did not arise out of the common risk but out
of the employment.”
• “The same doctrine has been declared, under the American statutes, by many of the
state courts. See, for example: ... [citations omitted]. ... The basis of these decisions
is that under the special facts of each case the employment itself involved peculiar
and abnormal exposure to a common peril, which was annexed as a risk incident to
the employment.”
• “Here the location of the plant [office building] was at a place so situated as to
make the customary and only practicable way of immediate ingress and egress one
of hazard. Parramorc [Petitioner/Claimant] could not, at the point of the accident,
select his way. He had no other choice than to go over the railway tracks [9-11 toxic
dust and debris area] in order to get to his work; and he was in effect invited by
his employer to do so. And this he was obliged to do regularly and continuously as a
necessary concomitant of his employment, resulting in a degree of exposure to the
common risk beyond that to which the general public was subjected. The railroad
[toxic dust and debris area] over which the way extended was not only
immediately adjacent to the plant [office building] but, by means of switches
[sidewalks], was connected with it and in principle it was as though upon the
actual premises of the employer.”
• “We attach no importance to the fact that the accident happened a few minutes
before the time Parramorc [Petitioner/Claimant] was to begin work and was,
therefore, to that extent, outside the specified hours of employment. The
employment contemplated his entry upon and departure from the premises as much
as it contemplated his working there, and must include a reasonable interval of
time for that purpose.”
Moreover, the following SCOTUS rulings also confirm the same legal concept as the
Cudahy Packing Co. v. Parramore case and the historic 9-11 WCB case of Tompkins v.
Morgan Stanley Dean Witter cited above for NY WCB Article 8-A cases: Certain risks arise
that constitute a nexus between the street risks and the employment as a “special hazard
zone of danger near Ground Zero”.
• Erie R. Co. v. Winfield, 244 U.S. 170 (1917) SCOTUS Court
• Bountiful Brick Co. v. Giles, 276 U.S. 154 (1928) SCOTUS Court
Page 51 of 55
Summation
The United State Constitution is the key that opens the door that has been
hidden and shut for 18 years. That door has blocked many 9-11 injured workers and
volunteers from getting the help they need and rightly deserve from the Article 8-A law.
The US Constitution requires that the door must be unhidden and unlocked for all injured
9-11 rescue, recovery, cleanup workers and volunteers.
This case isn’t about me. It’s about all the injured workers that were denied
justice over the past 18 years, and those that will be denied justice in the future,
due to the WCB unconstitutional “Ground Zero” and “authorized entity or agency”
restrictions, and the conflicts between the Article 8-A law and WCL § 123. God only knows
how many injured workers have been denied justice over the past 18 years, either by being
denied in WCB rulings or by not filing claims at all due to the WCB’s unconstitutional
restrictions added to their Article 8-A court decisions.
Question: Why would the WCB add “Ground Zero” and “Authorized entity/agency”
restrictions that violate the Constitution?
Answer: The New York Court of Appeals explained it well in a 1994 ruling:
Matter of Johannesen v. City of New York Dept, of HPD, 84 N.Y.2d 129 (1994), (also cited in
WCB Centennial Book [Appendix KJ):
• “Finally, in a policy-based argument, appellant [respondent] suggests that
recovery here will open floodgates and make every allergic reaction, common cold or
ordinary ailment compensable. This argument is often advanced when
precedent and analysis are unpersuasive.”
Government agencies cannot be allowed to use “Fruit of the Poisonous Tree”. If
government agencies are allowed to use prior decisions to deny rehearing requests, then
appellants must be allowed to use that same evidence from prior decisions to defend
themselves in appellate courts. Denying appellants that right would be equivalent
to giving government agencies both a sword and a shield to use against people
who have no way to defend themselves. This is especially egregious if appellants have
raised constitutional issues in prior hearings. If you give the government a sword and a
shield to use against someone in court, then it is required by the US Constitution to give
that same sword and shield to that person so they can defend themselves in court.
Injured workers and volunteers with serious health conditions have been suffering for
decades, and they will continue to suffer until these constitutional issues are corrected.
These Constitutional issues in Workers’ Compensation court rulings and rehearings
should be corrected in the interest of justice.
Page 52 of 55
The nationwide importance of this case is relevant to the following news articles:
• The Never Forget The Heroes: James Zadroga, Ray Pfeifer, And Luis Alvarez
Permanent Authorization Of The September 11th Victim Compensation Fund
o www. vcf. gov/p er manentauthoriza tion .html
•
U.S. Lawmakers Call for More Oversight of Workers’ Compensation
“In response to a ProPublica and NPR investigation, members of Congress are
urging the labor secretary to come up with a plan to protect injured workers and
taxpayers. Ten prominent Democratic lawmakers, including presidential candidate
Sen. Bernie Sanders, are urging the U.S. secretary of labor to come up with a plan
to ensure that state workers’ compensation programs are properly caring for injured
workers. The lawmakers’ letter, sent Tuesday, was prompted by an investigation by
ProPublica and NPR, which found that more than 30 states have cut benefits to
injured workers, created daunting hurdles to getting medical care or made it more
difficult for workers with certain injuries and illnesses to qualify.”
o www.propublica.org/article/lawmakers-call-for-more-oversight-of-workers-co
mp
•
Letter from Federal Lawmakers to Labor Department on Workers' Compensation October 20, 2015
“Over the past decade since DOL reporting ended, the erosion of workers'
protections has snowballed as states reduced workers' compensation. ... The race to
the bottom now appears to be nearly bottomless,... State workers’ compensation
laws are no longer providing adequate levels of support and compensation for
workers injured on the job; instead, costs are increasingly being shifted to the
American taxpayers to foot the bill. ... The changes to workers' compensation over
the last decade have been pushed by big businesses and insurance companies ... As
a result of these "reforms," many of those employees most in need of assistance have
had their benefits reduced to a small fraction of their pre-injury income and far too
frequently are forced out of the middle class and into poverty. ... The magnitude of
the cost shift to taxpayers from employers coupled with a race to the bottom in
substandard benefits should not be ignored any longer;”
o www.propublica.org/documents/item/2465674-letter-from-federal-lawmakersto-labor-on.html
•
The Demolition of Workers’ Compensation
Over the past decade, states have slashed workers’ compensation benefits, denying
injured workers help when they need it most and shifting the costs of workplace
accidents to taxpayers.
o www.propublica.org/article/the-demolition-of-workers-compensation
Page 53 of 55
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
Guy Cozzi
Date: __November 29, 2019
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.