ALBANY – A bond broker who blamed the loss of his success on the trauma of narrowly escaping from the 84th floor of 2 World Trade Center during the Sept. 11 terrorist attack was fairly denied Workers’ Compensation disability benefits, a state court ruled.
A unanimous Appellate Division, Third Department, panel declined to overturn last year’s 7-6 determination by the Workers’ Compensation Board, which found that Robert Launer was not entitled to partial disability benefits retroactive to Jan. 1, 2007, and continuing into the future.
In Matter of Launer v. Euro Brokers, 515992, the panel said there was “substantial” support in the record for the board’s ruling to block the $400-a-week benefits Launer first sought in December 2008, even though the court noted that all the parties agreed Launer suffered from post-traumatic stress disorder, or PTSD, related to the terrorist attack.
A worker’s comp hearing officer initially determined that the trauma left Launer 25 percent disabled, a finding that was overturned on an appeal brought by his former employer and its insurance carrier.
Chiefly, the judges said experts familiar with Launer’s mental state did not conclusively report that his failure to function effectively as a bond broker was directly caused by his 9/11 ordeal.
Launer argued that due to PTSD he could never reclaim the concentration or the interpersonal skills that he had while earning more than $150,000 a year at Euro Brokers.
He was at his 84th floor desk when a hijacked jetliner sliced at an angle into the South Tower between its 77th and 85th floor. Launer, then 52, escaped down stairways to the ground and said in his court brief that he was only a few blocks away from the South Tower when it collapsed.
Sixty-one Euro Broker employees on the 84th floor died in the attack. The firm went out of business.
Launer worked unsuccessfully as a bond broker at a series of jobs over the next seven years, including a failed attempt to form his own firm. His income also sank to a low of $7,019 in 2008, the year in which he filed for partial workers’ comp benefits.
Launer has sold annuities and insurance for Ameriprise in Mitchel Field since March 2009. It is a pursuit that is less demanding than being a bond broker, according to Launer’s appellate brief.
“He utterly lacked tolerance in interpersonal relations necessary to carry on his work as a bond broker with a culturally diverse clientele and remain pleasant in polite discussions of the complex religious, political and social issues which led to the World Trade Center disaster,” Launer’s attorney John Clennen of Ronkonkoma noted in his brief.
Launer also complained of his fear of being in tall buildings or bridges in New York City and of nightmares, depression, agitation and other symptoms associated with PTSD.
Justice Leslie Stein wrote that the notes of a psychologist who began treating Launer soon after the attacks did not reflect Launer’s complaints about the lack of concentration that he claimed had crippled his career.
“To the contrary, a psychiatrist who performed an independent medical examination opined that PTSD has no significant cognitive component and, therefore, should not create problems with concentration and focus at work,” Stein wrote.
She added that none of the experts reviewing the case were of the opinion that Launer would be blocked from being a broker by post-traumatic stress.
Euro Broker’s insurer also argued that the decline in Launer’s income was from the lagging economy and a slump on Wall Street starting around 2007, not to a loss of his professional abilities.
Presiding Justice Karen Peters and Justices William McCarthy and John Egan Jr. joined in the 4-0 ruling on March 27.
Launer’s attorney said claimants face an uphill battle in workers’ comp cases similar to his due to the Court of Appeals’ ruling in Matter of Zamora v. New York Neurologic Assoc., 19 NY3d 186 (2012), where the court said in cases where a claimant’s involuntary withdrawal from a job has not been established, the onus is on the claimant to show that the loss of earnings capacity is due to a claimed injury or disability and not to general economic conditions (NYLJ, May 2, 2012).
Clennen said it is a “historical fallacy” to argue that the downturn of the economy and on Wall Street did not occur until the late 2000s and that the onset of the recession accounted for the dive in Launer’s income and professional fortunes.
Peter DeCurtis of Stewart, Greenblatt, Manning & Baez of Syosett argued for Euro Brokers and its insurer, the American Protection Insurance Co.
The full Workers’ Compensation Board ruled on Launer’s request after a panel of the board ruled 2-1 in November 2011 against the hearing officer’s determination granting him the partial disability benefits.
In addition to initially approving Launer’s eligibility for benefits, the workers’ comp hearing officer also granted Launer’s request for $20,000 in legal fees.