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

Case No. ADJ7422993
Regular
Apr 06, 2015

SHIRLEY LESCALLETT vs. WAL-MART, ACE AMERICAN INSURANCE, YORK RISK SERVICES

In this workers' compensation case, the applicant sought to select a pain management specialist as her primary treating physician. The employer's Medical Provider Network (MPN) did not have any pain management specialists within the 15-mile/30-minute access standard for primary physicians, though it did have specialists within a 30-mile/60-minute radius. The Appeals Board affirmed the WCJ's decision, holding that if an applicant chooses a specialist for their primary care, the MPN must provide at least three physicians of that specialty within a 15-mile/30-minute radius. Since the defendant's MPN failed to meet this standard for pain management specialists, the applicant was permitted to choose one outside the MPN. A dissenting opinion argued that the 30-mile/60-minute standard for specialists should apply, allowing the applicant to select a physician within that broader radius from the MPN.

MPNMedical Provider NetworkPrimary Treating PhysicianSpecialistAccess StandardsAdministrative Director's RulePain Management PhysicianGeographic RadiusLabor CodeWorkers' Compensation Appeals Board
References
3
Case No. MISSING
Regular Panel Decision

Abraham & Straus, Inc. v. International Union of Operating Engineers, Local Union No. 30

Abraham & Straus (A&S) sought a preliminary injunction against defendant Local 30 to stop picketing and job actions concerning engineer and mechanic staffing at a new Roosevelt Field store. A&S argued these actions violated their collective bargaining agreement's no-strike and arbitration clauses. Local 30 contended the dispute was purely representational, not arbitrable, and that Boys Markets relief did not apply to picketing alone. The court found the dispute arbitrable due to the broad arbitration clause and the union's previous intent to arbitrate. It also determined that Boys Markets injunctions could cover picketing, especially when it caused work stoppages, ultimately granting A&S's request and ordering arbitration.

Labor DisputePreliminary InjunctionCollective Bargaining AgreementArbitration ClauseNo-Strike ClausePicketingWork StoppageBoys Markets ExceptionLabor Management Relations ActFederal Court Jurisdiction
References
14
Case No. ADJ9052223
Regular
Aug 05, 2016

Joel Rodriguez Luna vs. The Home Depot, Helmsman Management

Here's a summary of the case for a lawyer in a maximum of four sentences: The Workers' Compensation Appeals Board denied Joel Rodriguez Luna's Petition for Removal, affirming the WCJ's finding that Home Depot's Medical Provider Network (MPN) complied with access standards. The WCJ determined that for a specialist, like an orthopedist, the MPN only needed to meet the 30-mile/60-minute access standard, not the stricter 15-mile/30-minute standard for a general primary treating physician. The Board agreed, concluding that since there was at least one orthopedic surgeon within the 30-mile radius, the MPN satisfied its obligations, despite the applicant's preference for a specialist within a closer distance. The dissenting opinion argued the MPN failed by not having at least three specialists readily available to serve as primary treating physicians for the applicant's specific orthopedic injuries.

Workers' Compensation Appeals BoardPetition for RemovalMedical Provider Network (MPN)Access StandardsPrimary Treating PhysicianSpecialistGeographic AreaAdministrative Director's RuleLabor CodeIndustrial Injury
References
3
Case No. 2022 NY Slip Op 00084 [201 AD3d 1064]
Regular Panel Decision
Jan 06, 2022

Matter of Sow (NY Minute Messenger, Inc.--Commissioner of Labor)

This case concerns an appeal by NY Minute Messenger, Inc. (NYMM) from decisions of the Unemployment Insurance Appeal Board. The Board ruled that NYMM was liable for unemployment insurance contributions for claimant Alfousseyn Sow and similarly situated individuals, determining an employer-employee relationship existed. NYMM, a logistics broker, had engaged Sow as a driver via a third-party administrator. The Department of Labor initially found an employment relationship, which was sustained by an Administrative Law Judge and affirmed by the Board. The Appellate Division, Third Department, affirmed the Board's decision, finding substantial evidence supported the employer-employee relationship based on factors like NYMM issuing identification, assigning work, setting pay, and handling complaints. The court also upheld the application of this finding to others similarly situated and the denial of certain testimony as cumulative or irrelevant.

Unemployment BenefitsEmployer-Employee DisputeIndependent Contractor StatusLogistics IndustryDriver ClassificationAppellate ReviewAdministrative Law JudgeUnemployment Insurance Appeal BoardSubstantial Evidence StandardControl Test
References
10
Case No. 2016 NY Slip Op 06428
Regular Panel Decision
Oct 04, 2016

Commissioners of the State Insurance Fund v. NY Minute Management Corp.

This case concerned an action for nonpayment of workers' compensation premiums brought by the Commissioners of the State Insurance Fund against NY Minute Management Corp. The Supreme Court initially granted summary judgment dismissing the complaint. However, the plaintiff's motion to renew was granted, leading to the vacation of the prior order, dismissal of claims pertaining to drivers' premiums, and restoration of remaining claims for non-drivers' premiums to mediation. The Appellate Division, First Department, affirmed the lower court's decision to grant renewal, citing appropriate judicial discretion in the interest of justice. It also found the defendants' argument regarding "new legal theories" to be unavailing.

Workers' CompensationPremium ClaimsSummary JudgmentMotion to RenewIndependent ContractorsInsurance PolicyAppellate ReviewJudicial DiscretionInterest of JusticeAffirmance
References
1
Case No. ADJ9145724
Regular
Jun 01, 2015

ARZAGA, JOSE vs. CROWN AUTOMOTIVE, INC., AMTRUST NORTH AMERICA

This case involves an applicant seeking to select a pain management specialist outside his employer's Medical Provider Network (MPN). The applicant argued the MPN failed to provide a qualifying specialist within the required 15-mile/30-minute access standard for a primary treating physician. The Board denied the employer's petition for reconsideration, affirming the applicant's right to choose an out-of-network physician and reimbursement for investigative costs. The majority reasoned that the MPN must meet the closer access standard for a primary treating physician, even if that physician is a specialist. A dissenting opinion argued that a specialist, when chosen as a primary treating physician, should fall under the 30-mile/60-minute access standard for specialists.

Medical Provider NetworkMPNprimary treating physicianpain management specialistaccess standardAdministrative Director's Rule 9767.5investigative costsLabor Code section 5703Lescallett v. Wal-MartMartinez v. New French Bakery
References
2
Case No. No. 29, No. 30
Regular Panel Decision
Apr 21, 2022

The Matter of the Claim of Thomas Johnson v. City of New York , The Matter of the Claim of Joseph D. Liuni v. Gander Mountain

The New York Court of Appeals addressed a common issue in these appeals: whether a claimant’s schedule loss of use (SLU) award must always be reduced by a prior SLU award to a different subpart of the same body “member” under Workers’ Compensation Law (WCL) § 15. The Court clarified that separate SLU awards for distinct injuries to the same statutory member are permissible, provided the claimant demonstrates that the second injury resulted in an increased loss of use. For Thomas Johnson, the Court affirmed the prior decision, concluding he failed to present sufficient evidence isolating the impairment caused solely by his knee injury, apart from his prior hip injury award. Conversely, for Joseph D. Liuni, the Court reversed and remitted the case, as Liuni had provided evidence through his expert that his elbow and shoulder injuries were separate pathologies, each contributing distinctly to the loss of use of his arm.

Schedule Loss of Use (SLU)Successive InjuriesBody Member ImpairmentEarning CapacityStatutory InterpretationKnee InjuryHip InjuryElbow InjuryShoulder InjuryMedical Expert Testimony
References
29
Case No. MISSING
Regular Panel Decision
Nov 23, 2005

CARTIER, DIV. OF RICHEMONT v. Bertone Group

In a trademark infringement case, defendants moved to disqualify plaintiffs' litigation counsel, Tal Benschar, Esq., from serving as a 30(b)(6) deposition witness, citing New York Disciplinary Rule 5-102 which addresses the advocate-witness rule. The Court denied the defendants' motion, allowing Mr. Benschar to testify. The Court acknowledged the potential for confusion and conflicting loyalties when a lawyer acts as both a witness and an advocate, but found these dangers less likely in the pre-trial context. It also considered that Mr. Benschar was in the best position to provide the requested information, having supervised the investigation. However, the Court deferred its ruling on whether Mr. Benschar’s testimony would disqualify him from subsequently serving as trial counsel, noting that another attorney would be primary trial counsel.

Trademark InfringementDiscoveryFed.R.Civ.P. 30(b)(6)Attorney DisqualificationAdvocate-Witness RuleEthical RulesDeposition TestimonyPre-Trial ProcedureNew York LawCounsel Representation
References
2
Case No. MISSING
Regular Panel Decision
Jun 28, 2007

Lucas v. Fulton Realty Partners

The plaintiffs, Audobon Lucas and Lawrence J. Brex, were injured while dismantling large steel storage cages in a warehouse owned by 30 Warren Place Corp. Lucas, working on a scaffold, was struck by falling sheet metal from a cage he was prying from a wall, and Brex was injured attempting to assist him. The Supreme Court granted the plaintiffs' motion for summary judgment on the issue of liability under Labor Law § 240 (1). The appellate court affirmed this decision, finding that the plaintiffs were engaged in "altering" work covered by the statute and that the falling object liability applied as the unsecured sheet metal posed a significant risk. The court also determined that the appellant's unsworn workers' compensation forms were insufficient to raise a triable issue of fact regarding causation.

Personal InjuryLabor LawSection 240(1)Summary JudgmentLiabilityFalling ObjectConstruction AccidentWarehouseScaffold IncidentAltering Work
References
19
Case No. MISSING
Regular Panel Decision

Trustees of International Union of Operating Engineers Local 30 Benefits Funds v. Nyack Hospital

The case concerns an action by the Trustees of the International Union of Operating Engineers, Local 30 Benefit Funds against Nyack Hospital to enforce an arbitration award mandating an audit of the hospital's books. The Defendant refused to participate in arbitration, arguing no agreement to arbitrate existed. The District Court denied the Plaintiffs' motion to confirm the award and granted the Defendant's cross-motion to vacate and dismiss the complaint. The court ruled that the right to arbitrate a payroll audit, as stipulated in the Trust Agreement or Collection Policy, was not an "essential" provision binding on a non-signatory employer like Nyack Hospital. Furthermore, the court found that the Defendant had not waived its right to challenge the arbitration, as the ninety-day statute of limitations did not apply to challenges based on a complete lack of an agreement to arbitrate.

Arbitration AwardArbitrabilityCollective Bargaining AgreementTrust AgreementERISALabor Management Relations ActBenefit FundsPayroll AuditNon-signatoryStatute of Limitations
References
21
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