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

Case No. 2021 NY Slip Op 00744 [191 AD3d 1363]
Regular Panel Decision
Feb 05, 2021

Lemiszko v. Mosovich 2014 Family Trust

Plaintiff Troy C. Lemiszko commenced an action seeking damages for injuries sustained after falling from a ladder on premises owned by Mosovich 2014 Family Trust. Defendant AAA Contracting, LLC appealed an order denying its pre-answer motion to dismiss Labor Law claims and the Trust's cross-claim for contractual indemnification. The Appellate Division affirmed the lower court's order, rejecting AAA Contracting, LLC's collateral estoppel argument, finding that a prior workers' compensation determination did not preclude plaintiff's Labor Law recovery. The court also upheld the denial of dismissal for the contractual indemnification cross-claim due to insufficient documentary evidence.

Collateral EstoppelLabor Law ClaimsContractual IndemnificationWorkers' Compensation BoardLadder FallPersonal InjuryAppellate ReviewMotion to DismissGeneral Contractor LiabilityUninsured Employer
References
13
Case No. MISSING
Regular Panel Decision
Jan 08, 2014

Claim of Angela Page v. Liberty Central School District

The claimant, a school librarian, sought workers' compensation benefits in July 2004 for a disability from toxic mold exposure, leading to an established claim for hypersensitivity and awards for temporary total disability. In 2006, the claim was amended to include multiple chemical sensitivity, and awards for marked disability continued. A Workers’ Compensation Law Judge (WCLJ) later classified the claimant with a permanent total disability in March 2010, but the Workers' Compensation Board rescinded this finding and referred the matter to an impartial medical specialist, Theodore Them. Them testified that multiple chemical sensitivity is not a medically recognized condition and that the claimant had no causally-related disability, which the Board credited in its December 2012 decision, finding no further causally-related disability and closing the case. The claimant's subsequent appeal of this decision was not perfected, and an application for reconsideration was denied. An April 2013 WCLJ decision to further develop the record on disability was challenged by the employer, who argued the December 2012 Board decision had resolved the issue. The Board panel agreed with the employer in January 2014, precluding further development of the record, a decision which this Court affirmed on appeal, stating the issue of causally-related disability had been decided and the claimant's remedy was a timely appeal of the prior Board decision.

References
2
Case No. 2017 NY Slip Op 07024
Regular Panel Decision
Oct 05, 2017

Matter of Piorkowski v. Pat Forsha Truck & Auto

Claimant David J. Piorkowski suffered a work-related left knee injury in 2006 during his employment with Pat Forsha Truck & Auto, leading to surgeries and ongoing symptoms. In 2014, he filed a separate claim, alleging a new left knee injury while working for Wal-Mart, stemming from two incidents in September 2014 where he assisted customers. The Workers' Compensation Law Judge and subsequently the Workers' Compensation Board determined that the 2014 incidents constituted an exacerbation of his preexisting condition rather than a new injury, disallowing the claim. Pat Forsha Truck & Auto appealed the Board's decision. The Appellate Division, Third Department, affirmed, citing the Board's expertise in distinguishing between new injuries and exacerbations, and its authority to resolve conflicting medical opinions. The court found substantial evidence to support the Board's conclusion that the September 2014 incidents did not represent new injuries.

Workers' Compensation Law JudgePreexisting ConditionCausation DisputeMedical EvidenceAppellate Division Third DepartmentBoard Decision AffirmedIndustrial AccidentOrthopedic SurgeryIndependent Medical ExaminationWork-Related Injury
References
3
Case No. ADJ1560764
Regular
Oct 02, 2014

DEBORAH THOMAS vs. LOS ANGELES COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES

The Workers' Compensation Appeals Board dismissed the defendant's petition for reconsideration as untimely. The defendant was personally served with the WCJ's orders on July 28, 2014, making the filing deadline August 18, 2014. The petition was not filed until August 22, 2014, exceeding the jurisdictional 20-day limit. Therefore, the Board lacked the authority to consider the petition, even though it would have been denied on the merits had it been timely.

Petition for ReconsiderationUntimely FilingLabor Code Section 5903Jurisdictional DeadlinePersonal ServiceMailing ExtensionWorkers' Compensation Appeals BoardWCJ ReportDismissalGovernment Entity Verification
References
3
Case No. ADJ8987075
Regular
Nov 21, 2014

MAGALI PENA vs. DEL MAR SEAFOODS, STATE NATIONAL INSURANCE COMPANY

The Workers' Compensation Appeals Board granted the defendant's petition for reconsideration regarding the applicant's temporary disability period. The Board amended the prior finding, establishing the temporary disability for the applicant's knee injury from June 19, 2013, through April 17, 2014. This amendment adjusted the end date of temporary disability from April 27, 2014, to April 17, 2014. The Board otherwise affirmed the original Amended Findings and Award.

Petition for ReconsiderationFindings and AwardTemporary DisabilityIndustrial InjuryWorkers' Compensation Appeals BoardWCJAmended Findings and AwardPermanent and StationaryMedical OpinionReport and Recommendation
References
0
Case No. ADJ7644729
Regular
May 20, 2014

COREY EVANS vs. FIRMANICH, TRAVELERS

The Workers' Compensation Appeals Board (WCAB) dismissed Corey Evans' petition for reconsideration as untimely. Although the Findings and Orders were issued on December 20, 2013, Evans stated he had actual notice on February 14, 2014. This established a deadline of March 6, 2014, for filing the petition. Since Evans filed his petition on March 26, 2014, it was beyond the jurisdictional deadline. Therefore, the WCAB lacked the power to grant the petition, and it was dismissed accordingly.

Petition for Reconsiderationuntimely filingLabor Code section 5903jurisdictional time limitactual noticeWCJ Report and Recommendationcredibility findingdismissalAppeals Boardapplicant's attorney
References
8
Case No. ADJ8838881
Regular
Jul 11, 2014

ALEXANDER ENGLISH vs. DALLAS MAVERICKS, ZENITH INSURANCE COMPANY

This case involves a petition for removal filed by the defendants, Dallas Mavericks and Zenith Insurance Company. The Workers' Compensation Appeals Board dismissed the petition because it was filed on June 18, 2014, which was untimely. The original decision was issued on April 8, 2014, and the petitioner failed to file within the required 20-day period for personal service. The Board clarified that the 20-day deadline, not 25 days, applied, making the petition due by April 28, 2014.

Petition for RemovalUntimely FilingPersonal Service20-day DeadlineWCJ ReportStrom v. Workers' Comp. Appeals Bd.ADJ8838881Oakland District OfficeWorkers' Compensation Appeals BoardDALLAS MAVERICKS
References
1
Case No. ADJ9058932
Regular
Jul 28, 2014

DIANA OCHOA vs. COUNTY OF LOS ANGELES, DEPARTMENT OF PUBLIC SOCIAL SERVICES, SEDGWICK CMS

The Appeals Board dismissed the defendant's Petition for Removal, finding it was an improper remedy for contesting a final order to pay a deposition fee. Treating the petition as one for reconsideration of the WCJ's order to pay $1,300 in deposition fees, the Board also dismissed it as untimely filed. The defendant's objection was overruled via WCJ correspondence on April 22, 2014, making the petition for reconsideration due by May 19, 2014, but it was filed on May 27, 2014. The Board would have denied reconsideration on the merits due to the WCJ's reasoning, had it been timely.

Workers' Compensation Appeals BoardPetition for RemovalPetition for ReconsiderationLabor Code section 5710Deposition FeeWCJDue ProcessFinal OrderTimely FiledEvidentiary Hearing
References
4
Case No. Nos. 56, 57 & 58
Regular Panel Decision
May 19, 2023

George Hoehmann v. Town of Clarkstown , The Matter of Frank Borelli v. Town of Clarkstown, The Matter of Rosalind Jacobson v. George A. Hoehmann

These three appeals involve challenges to Local Law No. 9-2014, adopted by the Town Board of the Town of Clarkstown in 2014, which purports to set an eight-year term limit for all Clarkstown elected officials and requires a supermajority vote of the Town Board to repeal. These actions were brought seeking a determination that the law is invalid because it was never subject to a referendum of the Town’s voters. Appellants contended that the challenge was time-barred. The court disagreed, holding that a local law requiring a mandatory referendum that was not held lacks operative effect and cannot become operative through the mere passage of time. The Court of Appeals affirmed the Appellate Division's order, concluding that Local Law No. 9-2014 has no legal force or effect.

Election LawTerm LimitsMandatory ReferendumLocal LawMunicipal Home RuleValidity of LawStatute of LimitationsAppellate ProcedureCourt of AppealsClarkstown
References
5
Case No. 2021 NY Slip Op 02039
Regular Panel Decision
Apr 01, 2021

Matter of Sanchez v. Jacobi Med. Ctr.

Claimant Rurico Sanchez was injured in a work-related accident in 2008, leading to a permanent partial disability classification. Following spinal surgeries in 2014 and 2015, the Workers' Compensation Board reclassified his disability and applied various benefit periods against his 300-week durational limit. This appeal addresses the Board's subsequent reclassification decision upon remittal from a prior Appellate Division ruling. The Court found insufficient evidence for the Board's reclassification of claimant as permanently partially disabled for the period following his March 2014 surgery (September 4, 2014 to December 10, 2015) and remitted this portion. However, it affirmed the reclassification for the period following the December 2015 surgery (September 15, 2016 to November 6, 2017). The Court also reversed the Board's reclassification of claimant from temporary total disability to permanent partial disability for periods between surgeries, citing a violation of due process for lack of notice and opportunity to be heard. The matter is remitted to the Workers' Compensation Board for further proceedings consistent with the decision.

Workers' CompensationPermanent Partial DisabilityTemporary Total DisabilityDurational LimitsWage Loss BenefitsReclassificationDue ProcessMedical OpinionSpinal SurgeryAppellate Review
References
7
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