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An Albany, N.Y., appellate panel last week upheld a Sept. 11, 2001-inspired workers’ compensation claim that will result in a domestic partner sharing benefits with the decedent’s child. The consequence of last week’s decision by Justice D. Bruce Crew III of the Appellate Division, 3rd Department, is that Paul Innella’s 6-year-old daughter will lose some workers’ compensation death benefits to a woman who says she was engaged to Innella. The woman is not the child’s mother. “[O]ne certainly could debate the equities of the statute,” Crew wrote for a unanimous panel that included Presiding Justice Anthony V. Cardona, Carl J. Mugglin, Robert S. Rose and Anthony T. Kane. Nonetheless, the justices said, the provision survives constitutional scrutiny. Innella, one of 658 Cantor Fitzgerald employees killed in the terrorist attack on the World Trade Center, left behind a then 22-month-old daughter and two women with whom he had had relationships. One, Jennifer Novara, is the mother of his child. The other was his fiancee, Lucy Aita. After Novara applied for and obtained $400 weekly in workers’ compensation benefits on behalf of the child, Aita filed a challenge contending that she, as Innella’s domestic partner, was entitled to the equivalent of a spousal share. The state Workers’ Compensation Board agreed, as did the 3rd Department in Matter of Jennifer Novara, 96513. The dispute is rooted in a measure passed by the state Legislature immediately following the Sept. 11, 2001, attacks and applied retroactively to Sept. 10, 2001. That measure, Workers’ Compensation Law �4, afforded the domestic partners of employees the same right to death benefits as a surviving spouse. After a hearing, where Aita established to the satisfaction of a workers’ compensation judge that she was the domestic partner of Innella, she was awarded $220 weekly and the child’s share was cut to $180. The mother, Novara, appealed on her child’s behalf. “Although we agree with [Ms. Novara] that Workers’ Compensation Law �4 indeed creates an inequity in the law � we are simply unable to conclude that such disparate treatment violates the Equal Protection Clause of the U.S. Constitution,” Crew wrote. In support of the provision, the Workers’ Compensation Board, represented by the attorney general, argued that the application of �4 in this case is entirely consistent with the overarching goal of the legislation — namely to “provide financial assistance to the families of workers injured or killed on the job and to keep such dependents off the public dole. “Extending such financial support to domestic partners, the Board argues, is both appropriate and logical as it ensures some form of financial support to as many September 11 dependents as reasonably can be identified,” Crew wrote. The board argued, according to the court, that to the extent the interpretation reduces workers’ compensation benefits to dependent children, “the Legislature reasonably could have anticipated that the resulting financial impact would be cushioned by the various forms of private and public aid available to the families of the victims of September 11.” LEGITIMATE INTEREST Crew said the court was constrained to agree so long as the statute has a rational link to a legitimate public interest as, he said, it does. The court also rejected Novara’s argument that Workers’ Compensation Law �4 violates the “quid pro quo” and “trade-off” provisions of the state Constitution and the due process and takings clauses of the U.S. Constitution. The quid pro quo/trade-off argument centered on the contention that, but for the Workers’ Compensation Law, Novara would have been able to sue Cantor Fitzgerald, a prominent Manhattan bond trader, under the state’s wrongful death statute. Novara claimed that reducing her daughter’s award and shifting more than half of it to Aita effected an unconstitutional trade-off of rights. Crew and his colleagues disagreed and also dismissed federal constitutional claims that the interpretation was contrary to the due process clause. They said the child had no vested right to benefits, since the Workers’ Compensation Board retains continuing jurisdiction to modify awards. Additionally, the court said, nothing that has already been provided to the child is taken away as a result of Aita’s successful challenge. That challenge affects only future benefits, it noted. “Moreover, even if claimant were correct that her daughter had a vested property interest in the continued receipt of decedent’s death benefits in a specified amount, due process requires nothing more than claimant be given notice and an opportunity to be heard, which was provided here,” Crew wrote. On the takings clause argument, the court said such a claim fails where, “as here, there is nothing more than an expectancy interest.” Robert E. Grey of Grey & Grey in Farmingdale appeared for Novara. Martin Krutzel of Fischer Brothers in Manhattan represents Cantor Fitzgerald. Assistant Attorney General Dorothy E. Hill defended the statute.

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