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

Case No. 2019 NY Slip Op 06250
Regular Panel Decision
Aug 22, 2019

Utica Mut. Ins. Co. v. Abeille Gen. Ins. Co.

Utica Mutual Insurance Company appealed an order and judgment from the Supreme Court, Oneida County, which had dismissed its complaint against Abeille General Insurance Company et al. The appeal was heard by the Appellate Division, Fourth Department. Following a stipulation of discontinuance signed by the attorneys for the parties in July 2019, the Appellate Division unanimously dismissed the appeal without costs on August 22, 2019.

Insurance disputeAppellate reviewStipulation of discontinuanceComplaint dismissalOneida CountyFourth DepartmentInter-company litigationLegal costsCivil procedureOrder and judgment
References
3
Case No. 2019 NY Slip Op 01011 [169 AD3d 1477]
Regular Panel Decision
Feb 08, 2019

Matter of Riccelli Enters., Inc. v. State of N.Y. Workers' Compensation Bd.

This case involves an appeal stemming from an order of the Supreme Court, Onondaga County, which had granted partial summary judgment to Riccelli Enterprises, Inc., et al., and 3679 River Road, Inc., et al. These parties were respondents and intervenors-respondents, respectively, while the State of New York Workers' Compensation Board and others were the appellants. The Appellate Division, Fourth Department, reviewed the appeal. However, prior to a full merits decision, the appeal was dismissed. The dismissal was a result of a stipulation of discontinuance signed by the attorneys for all parties involved on January 15, 2019.

Workers' Compensation BoardAppellate DivisionSummary JudgmentAppeal DismissalStipulation of DiscontinuanceOnondaga CountyJudiciary LawFourth DepartmentProceduralCase Dismissal
References
2
Case No. 2023 NY Slip Op 02297 [216 AD3d 617]
Regular Panel Decision
May 03, 2023

Curry v. Town of Oyster Bay

Edward Curry, Sr. commenced an action against the Town of Oyster Bay, O.B. Sanitation Dept., and Mike Del, among others, to recover damages for assault and battery. The claims arose from an incident on January 6, 2019, and subsequent conduct. The defendants moved to dismiss the complaint pursuant to CPLR 3211 (a) (7). The Supreme Court initially denied the motion. On appeal, the Appellate Division modified the order by granting dismissal of claims against O.B. Sanitation Dept. and Mike Del related to the January 6, 2019 incident, and dismissing all claims arising after January 6, 2019, against all appellants due to an inadequate notice of claim. The Supreme Court's decision to deny dismissal against the Town of Oyster Bay for the January 6, 2019 incident was affirmed based on a theory of vicarious liability.

Assault and BatteryVicarious LiabilityNotice of ClaimMotion to DismissCPLR 3211 (a) (7)Municipal LiabilityAppellate ReviewProcedural LawTortsPersonal Injury
References
4
Case No. ADJ10387805
Regular
Oct 28, 2019

PARDEEP SINGH vs. 7 ELEVEN, MITSUI SUMITOMO

The Workers' Compensation Appeals Board (WCAB) dismissed Pardee Singh's Petition for Reconsideration. The petition was deemed untimely because it was filed on August 28, 2019, which was after the jurisdictional deadline of August 26, 2019. This deadline was calculated from the service date of an Order Allowing Costs on August 1, 2019. The WCAB clarified that for a petition to be timely, it must be *received* by the board within the statutory period, not merely mailed.

Petition for ReconsiderationUntimelyDismissedWCABWCJLabor Code Section 5900Labor Code Section 5903Cal. Code Regs. tit. 8 § 10507Cal. Code Regs. tit. 8 § 10508Cal. Code Regs. tit. 8 § 10845
References
4
Case No. ADJ11124817
Regular
Mar 25, 2019

GASPAR VILLEGAS vs. INTERIOR RESOURCES, SECURITY NATIONAL INSURANCE, AMTRUST NORTH AMERICA, INC.

This case involves defendant's petitions challenging an order awarding interpreter costs. The Appeals Board dismissed the petition for removal and treated the January 22, 2019 petition as a timely petition for reconsideration, which was granted. The Board also dismissed the February 4, 2019 petition as untimely or moot. The January 7, 2019 order was affirmed, but amended to award $228.00 in Labor Code section 5811 costs.

Petition for RemovalPetition for ReconsiderationWCJ reportsLabor Code 5811 Costsinterpreting costsfinal ordersubstantive rightthreshold issueuntimely petitionmoot petition
References
8
Case No. ADJ10337382
Regular
Aug 28, 2019

JUAN LUNA vs. NISSAN OF MISSION HILLS, AMTRUST NORTH AMERICA

The Workers' Compensation Appeals Board (WCAB) dismissed Juan Luna's petition for reconsideration as untimely. The WCAB treated Luna's handwritten filing as a petition for reconsideration of a May 28, 2019 decision. Under California law, a petition for reconsideration must be filed within 25 days of service by mail, with extensions for weekends and holidays. Luna's petition, filed on July 3, 2019, exceeded the June 24, 2019 deadline, making it jurisdictionally deficient.

Petition for ReconsiderationUntimely PetitionJurisdictional Time LimitWorkers' Compensation Appeals BoardWCJ ReportFindings and OrderLabor CodeCalifornia Code of RegulationsProof of MailingApplicant in Pro Per
References
4
Case No. ADJ10227826
Regular
Mar 02, 2020

CARMEN PINEDA vs. MISSION FOODS (GRUMA CORPORATION), ACE AMERICAN INSURANCE COMPANY, GALLAGHER BASSETT SERVICES, INC.

The Appeals Board granted reconsideration of the applicant's petition because of discrepancies regarding its timely filing. While the applicant's attorney signed the petition on December 30, 2019, and the EAMS filing date shows December 31, 2019, the applicant must provide definitive proof of filing on December 30, 2019. Failure to provide this proof, including an EAMS Batch ID, will result in the petition being dismissed as untimely. The Board is issuing an Order to Show Cause why the petition should not be dismissed.

WCABPetition for ReconsiderationEAMSFiling DateTimelinessElectronic FilingBatch IDProof of ServiceReconsideration GrantedNotice of Intention to Dismiss
References
2
Case No. ADJ12491238
Regular
Mar 02, 2020

KRISLYN TANAKA vs. OS PACIFIC LLC dba ROY'S, MARKEL INSURANCE COMPANY

This case involves a pastry chef injured at Roy's who also worked at Transit Café. The Workers' Compensation Appeals Board (WCAB) granted reconsideration to correct the calculation of the applicant's average weekly wage, finding it to be \$915.81. The WCAB determined the applicant was entitled to temporary partial disability from January 10, 2019, to August 2, 2019, at \$431.31 per week. Furthermore, the Board found the applicant temporarily totally disabled from August 3, 2019, to the present and continuing, at \$610.54 per week, based on significant work restrictions and physician opinions.

Temporary partial disabilityTemporary total disabilityAverage weekly wageWage lossModified workVoluntary resignationWork restrictionsPrimary treating physicianReconsiderationFindings and Award
References
0
Case No. 535140
Regular Panel Decision
Nov 17, 2022

In the Matter of the Claim of Fernando Nunez

Fernando Nunez appealed two decisions from the Workers' Compensation Board. Nunez, a maintenance worker, sustained work-related injuries in July 2018. In March 2019, he experienced further back issues at home and resigned. His workers' compensation claim was initially established for a lower back injury by a WCLJ, who found the March 2019 incident exacerbated his prior injury and awarded benefits. However, the Board modified this, finding insufficient evidence of a causally-related disability after March 2019, and denied authorization for surgery. The Appellate Division affirmed the Board's decisions, noting Nunez's burden to prove continued disability and the Board's authority to assess medical evidence credibility, especially when expert opinions were based on incomplete histories provided by Nunez.

Workers' CompensationCausally Related DisabilityAppellate ReviewMedical Evidence CredibilityBurden of ProofLumbar Spine InjuryHerniated DiscBoard DecisionIndependent Medical ExaminationIncomplete Medical History
References
9
Case No. 2020 NY Slip Op 07641 [189 AD3d 1857]
Regular Panel Decision
Dec 17, 2020

Matter of Vargas v. Hampton Inn 35Th St.

Giovanny Vargas, the claimant, established a workers' compensation claim for injuries stemming from a 2012 accident. He sought to modify his awards from tentative to total disability rates for a period between 2012 and 2013. The Workers' Compensation Board, in a March 2019 decision, ruled that the award was properly modified to reflect a partial disability rate, considering medical evidence and his receipt of unemployment benefits. Vargas subsequently applied for reconsideration and/or full Board review, which the Board denied in June 2019. This appeal is specifically from the June 2019 denial of reconsideration, limiting the Appellate Division's review to whether the Board's denial was arbitrary and capricious or an abuse of discretion. The Appellate Division affirmed the Board's decision, concluding that Vargas did not demonstrate newly discovered evidence or a material change in condition, thus finding no abuse of discretion.

Workers' CompensationPartial DisabilityTotal DisabilityReconsiderationBoard ReviewAppellate ProcedureAbuse of DiscretionJudicial ReviewClaimant's RightsAdministrative Law
References
3
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