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Court of Claims: Springfield firefighter ineligible for crime victim compensation

Special to the Legal News

Published: October 24, 2016

A Springfield firefighter who traveled to New York to help with 9/11 cleanup efforts is not entitled to compensation from Ohio's Crime Victim Compensation Fund, according to a recent ruling from the Ohio Court of Claims.

The decision affirmed a ruling from the Ohio Attorney General earlier this year denying Fred Zerkle compensation due to the fact that he did not qualify as a "crime victim" under Ohio law.

The Court of Claims decision was based on its adoption of a ruling from Magistrate Judge Daniel Borchert, before whom Zerkle's appeal from the Attorney General's decision was briefed.

Court documents state that Zerkle was working as a firefighter when he decided to travel to New York City to aid in the aftermath of the World Trade Center terrorist attacks under the auspices of the Red Cross.

When he returned to Springfield, he worked as a postal worker until "emotional and health issues" prevented him from continuing to work. Along with compensation from the state, Zerkle filed for Social Security Disability and relief from the 9/11 Fund.

Zerkle claimed that his diagnoses of post-traumatic stress disorder and a respiratory disorder were directly related to his month-long experience at the site of the terrorist attacks.

The Attorney General, however, did not concede the Zerkle's health issues were related to his cleanup efforts and contended that Zerkle was not the victim of terrorism, under the law.

"The investigation revealed that Mr. Zerkle traveled to New York City in either October or November 2001," Borchert wrote. "Accordingly, any respiratory problems were caused by (his) cleanup activities and the PTSD issue was attributable to conversations he had with survivors or family members who lost loved ones in the 9/11 attacks."

According to Zerkle's testimony, part of his efforts at the attack site included sifting through rubble where he routinely discovered various body parts.

"He related he was physically and emotionally fine prior to his trip to New York City and shortly after his return, but then physical and mental health issues arose," Borchert wrote. "Applicant believes all these issues related to his experience at ground-zero in New York City."

Zerkle urged the court to find that that the terrorist attacks were not confined to one day but to the aftermath, including the "fouled air" around the site, which lasted approximately six months.

"Applicant argued the terrorist attack did not end on Sept. 11 but extended months later as long as people were injured in the aftermath cleanup effort," Borchert wrote.

But the Court of Claims noted that the Attorney General agreed that Zerkle may have suffered injury in the aftermath of the attacks, but maintained that he was simply ineligible for state relief since the immediacy of the conduct that the caused the injury was at issue.

But the Attorney General did note that Zerkle would be eligible for federal relief under 2010's First Responders Act.

The Court of Claims ultimately ruled that that none of the conditions pointed out by Zerkle would qualify him as a victim of criminally injurious conduct. It also noted other cases in which applicants were denied relief from the Crime Victim Compensation Fund when they were not present for the act that caused them injury.

"Applicant has failed to present case law from this jurisdiction or another jurisdiction which supports the proposition that a person who arrived at the scene of a terrorist event, months after its occurrence, qualified as a victim of crime," Borchert wrote. "Accordingly, I recommend the Attorney General's final decision of March 21, 2016, be affirmed."

Ohio Court of Claims Judge Patrick McGrath adopted the magistrate's recommendation.

The case is cited In re. Fred Zerkle, Case No. 2016-00313-VI.

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