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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. MISSING
Regular Panel Decision
Sep 18, 2002

O'Connor v. Spencer (1997) Investment Ltd. Partnership

Patrick O'Connor was injured after falling from a six-feet-tall Baker scaffold while performing demolition work for GTI Harbor & Trucking & Rigging, Inc., on premises owned by Spencer (1997) Investment Ltd. Partnership and its general partner, Spencer Realty, Inc. O'Connor and his wife subsequently commenced an action against the appellants, alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). The appellants moved for summary judgment, arguing workers' compensation exclusivity and non-liability under the Labor Law sections. The Supreme Court denied their motion in its entirety. On appeal, the order was modified: claims based on common-law negligence and Labor Law § 200 were dismissed, while the denial of summary judgment for Labor Law §§ 240(1) and 241(6) claims was affirmed.

Scaffold AccidentDemolition InjuriesWorkers' Compensation ExclusivityLabor Law ViolationsCommon-Law NegligenceSummary Judgment MotionAppellate Division DecisionPremises LiabilitySafety RegulationsGravity-Related Accident
References
14
Case No. MISSING
Regular Panel Decision

New York State Ass'n of Nurse Anesthetists v. Novello

This is a dissenting opinion challenging the majority's conclusion that an association of New York Certified Registered Nurse Anesthetists (CRNAs) lacks standing to sue the Commissioner of Health. The CRNAs challenged new 'Guidelines' which stipulate that CRNAs should provide services in office-based surgery only under supervision by a physician, dentist, or podiatrist 'qualified by law, regulation or hospital appointment to perform and supervise the administration of the anesthesia.' The dissent argues that the Guidelines, though presented as recommendations, are effectively regulations that will severely injure CRNAs' employment opportunities by requiring the presence of an anesthesiologist, making CRNAs redundant due to cost-prohibitive duplication of services. The dissenting judge criticizes the majority for deeming the CRNAs' evidence of economic harm as 'speculation' despite extensive factual showings from affidavits, asserting that precedent supports standing in such cases.

CRNA supervisionStandingGuidelines as regulationsEconomic injuryNurse anesthetistsAnesthesiologist supervisionOffice-based surgeryHealthcare regulationsJudicial dissentPhysician qualification
References
4
Case No. MISSING
Regular Panel Decision

Lippman v. Public Employment Relations Board

This proceeding involved the Unified Court System (UCS) challenging a determination by the Public Employment Relations Board (PERB). PERB had found that UCS violated the Taylor Law by unilaterally issuing an administrative order in December 1997 that amended regulations (22 NYCRR part 108) related to court reporters' fees for selling transcripts to litigants. The court reviewed PERB's findings that the new page-rate guidelines and a mandatory "Minute Agreement Form" constituted an improper practice by altering terms of employment. The court concluded that there was no substantial evidence to support PERB's finding that the page-rate guidelines actually limited reporters' compensation. Furthermore, while the Agreement Form did alter some aspects of employment, its impact was minimal and outweighed by UCS's broader mission to ensure understandable, uniform, timely, and affordable access to justice. Therefore, the court annulled PERB's determination and granted the petition.

Public Employment RelationsTaylor LawCourt ReportersTranscript FeesAdministrative OrderCollective BargainingTerms of EmploymentJudicial AdministrationAccess to JusticePublic Policy
References
24
Case No. ADJ4141215 (MON 0288595) ADJ4160601 (MON 0288596) ADJ2249717 (MON 0300098)
Regular
Dec 27, 2011

DOREEN LABOY vs. STATE OF CALIFORNIA, DEPARTMENT OF MENTAL HEALTH, Legally Uninsured; STATE COMPENSATION INSURANCE FUND / STATE CONTRACT SERVICES, Adjusting Agency

The Workers' Compensation Appeals Board (WCAB) denied the defendant's Petition for Reconsideration, finding their argument regarding AMA Guidelines irrelevant due to a prior stipulation to the 1997 Rating Schedule. The WCAB granted removal to issue notices of intention to impose sanctions and award attorney's fees/costs against the defendant and their counsel. This action is based on the defendant's frivolous and bad-faith tactics in raising an issue for the first time on reconsideration that was not previously litigated or argued. The defendant's petition is deemed without merit and solely intended to cause unnecessary delay.

LABOYDOREENSTATE OF CALIFORNIADEPARTMENT OF MENTAL HEALTHSTATE COMPENSATION INSURANCE FUNDJOINT FINDINGS AND AWARDPETITION FOR RECONSIDERATIONREMOVALNOTICES OF INTENTIONORDER TO PAY EXPENSES
References
6
Case No. CV-23-1298
Regular Panel Decision
May 30, 2024

In the Matter of the Claim of Michael Garofalo

Michael Garofalo, a lineman, sustained a left hand crush injury in January 2020 while working for Verizon New York, Inc. His workers' compensation claim was established. Following a permanency evaluation, his treating physician, Brian J. Harley, assessed a 35% schedule loss of use (SLU) of the left hand, using the 2012 New York State Guidelines for Determining Impairment. An independent medical examiner, Thomas R. Haher, initially concurred but later revised his opinion to 50% SLU based on the 2018 Guidelines. A Workers' Compensation Law Judge (WCLJ) adopted Harley's 35% SLU opinion, which the Workers' Compensation Board upheld. On appeal, the Appellate Division found that Harley improperly relied on the 2012 Guidelines instead of the applicable 2018 Guidelines, as the first medical evaluation occurred after January 1, 2018. The court determined that the Board's decision, relying on Harley's erroneous application of the guidelines, lacked substantial evidence. The decision was reversed, and the matter was remitted to the Workers' Compensation Board for a new determination of the appropriate SLU percentage.

Workers' CompensationSchedule Loss of UseLeft Hand InjuryMedical Guidelines2018 Impairment GuidelinesAppellate ReviewRemittalMedical Opinion ConflictTraumatic InjuryFractures
References
7
Case No. 2020 NY Slip Op 03966 [185 AD3d 1263]
Regular Panel Decision
Jul 16, 2020

Matter of McKay v. Southampton Hosp.

The case concerns an appeal by Jacqueline McKay (claimant) from a Workers' Compensation Board decision. The Board had affirmed a Workers' Compensation Law Judge (WCLJ) ruling to consider weaning the claimant from opioid medications based on an independent medical examiner's opinion under the Non-Acute Medical Treatment Guidelines (NAPMTG). The claimant argued that the Board exceeded its authority in promulgating these guidelines. The Appellate Division, Third Department, affirmed the Board's decision, holding that the Board properly exercised its broad regulatory power under the Workers' Compensation Law to issue the NAPMTG. The court found the guidelines rational and not unreasonable, arbitrary, capricious, or contrary to the statute, emphasizing that the NAPMTG furthered the aim of ensuring prompt and appropriate medical care for injured workers by expanding existing treatment guidelines to address comprehensive pain management, including the safe use of narcotics.

Medical Treatment GuidelinesOpioid WeaningRegulatory AuthorityAdministrative LawAppellate ReviewPain ManagementOccupational DiseasePermanent Partial DisabilityWorkers' Compensation BoardIndependent Medical Examination
References
5
Case No. 526425
Regular Panel Decision
Nov 15, 2018

Matter of Gasparro v. Hospice of Dutchess County

Mary Ann Gasparro, a claimant with a permanent partial disability from a 1995 work injury, moved to Nevada. In 2016, her employer's workers' compensation carrier objected to payments for topical pain relief products, LidoPro and Terocin patches, prescribed by a Nevada pain management specialist. The Workers' Compensation Board reversed a Workers' Compensation Law Judge's ruling, deciding that New York's Medical Treatment Guidelines apply to out-of-state treatment for nonresident claimants, a departure from its prior decisions. The Board found the prescribed medications were not in accordance with the guidelines due to concomitant use and duration. The Appellate Division, Third Department, affirmed the Board's decision, deeming its change in course rational and its application of the guidelines to out-of-state treatment reasonable. The court concluded that the Board's finding of medical necessity and non-compliance with guidelines was supported by substantial evidence.

Workers' CompensationMedical Treatment GuidelinesOut-of-State Medical CareNonresident ClaimantsPain ManagementTopical Pain ReliefLidoProTerocin PatchesAppellate DivisionBoard Reversal
References
12
Case No. MON 0318706
Regular
Jul 11, 2008

EDGAR BENITEZ vs. IRISH COMMUNICATIONS, AIG CLAIMS SERVICES, INC.

This case concerns the appropriate permanent disability rating schedule. The applicant argues the 1997 schedule applies due to his physician indicating permanent disability before January 1, 2005, an exception to the 2005 schedule's use. The Board granted reconsideration, agreeing that the physician's report finding the applicant eligible for vocational rehabilitation constituted an indication of permanent disability, thus triggering the 1997 schedule. The matter is returned to the trial level for rating under the 1997 schedule and subsequent issuance of a decision.

Permanent Disability Rating ScheduleLabor Code Section 4660(d)Primary Treating PhysicianVocational RehabilitationComprehensive Medical-Legal ReportPermanent and Stationary StatusGenlyte Group v. ZavalaZenith v. CuginiVera v. Workers' Comp. Appeals Bd.Agreed Medical Evaluator
References
3
Case No. ADJ6879193
Regular
Feb 10, 2012

KATHERINE LAU vs. CUPERTINO UNION SCHOOL DISTRICT, KEENAN and ASSOCIATES

The Workers' Compensation Appeals Board granted reconsideration to review the application of the 1997 vs. 2005 Permanent Disability Rating Schedules. The Board reversed the WCJ's finding, determining there was insufficient pre-2005 medical evidence of permanent disability to apply the 1997 schedule. Consequently, the Board applied the 2005 schedule, reducing the applicant's permanent disability rating from 29% to 12%. One Commissioner dissented, arguing the record supported the use of the 1997 schedule based on pre-2005 indications of permanent disability.

Workers' Compensation Appeals BoardReconsiderationFindings and AwardPermanent Disability Rating1997 Schedule2005 ScheduleLabor Code Section 4660(d)Comprehensive Medical-Legal ReportTreating Physician ReportIndustrial Injury
References
4
Case No. SAC 308714, SAC 341852
Regular
Oct 01, 2007

WAYNE LEWIS vs. BEUTLER HEATING AND AIR, ARCH INSURANCE, ST. JOHN'S RETIREMENT VILLAGE, STATE COMPENSATION INSURANCE FUND

This case concerns the applicability of either the 1997 or 2005 Schedule for Rating Permanent Disabilities. The applicant argued a December 2004 treating physician's report indicated permanent disability, thus requiring application of the older 1997 Schedule. The Board denied reconsideration, holding that the physician's report did not state the applicant was permanent and stationary, a necessary condition under Labor Code section 4660(d) and *Vera v. Workers' Comp. Appeals Bd.* for the 1997 Schedule to apply. Therefore, the 2005 Schedule was correctly applied.

Permanent disability schedule1997 schedule2005 schedulepermanent and stationaryP\&SLabor Code section 4660(d)treating physician's reportratable disabilityVera v. Workers' Comp. Appeals Bd.August 18
References
1
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