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

Case No. ADJ7934881
Regular
Apr 02, 2012

ERNIE PACHECO vs. LAURIE RECHTEGER OSBORN, FARMERS INSURANCE

This case concerns Ernie Pacheco, a handyman who sustained an injury on September 8, 2008, while working. The defendant, Laurie Rechteger Osborn and Farmers Insurance, petitioned for reconsideration of the original findings and award, arguing Pacheco did not meet the 52-hour threshold for coverage in the 90 days prior to his injury. The Workers' Compensation Appeals Board denied the petition, adopting the WCJ's report and recommendations. The WCJ found the defendant mischaracterized the applicant's testimony regarding hours worked, concluding that Pacheco did, in fact, exceed 52 hours when including all tasks. The Board gave great weight to the WCJ's credibility determination.

Petition for ReconsiderationDeniedWCJ ReportGarza v. Workmen's Comp. Appeals Bd.HandymanSlip and FallUpper ExtremitiesHeart/StrokeExclusion from Coverage52-Hour Rule
References
1
Case No. MISSING
Regular Panel Decision

Fraser v. 301-52 Townhouse Corp.

Plaintiffs, former residents of a cooperative apartment building owned by 301-52 Townhouse Corp., sought damages for personal injuries, including respiratory problems, rash, and fatigue, allegedly caused by dampness and mold. The defendants moved for summary judgment and preclusion of expert evidence. A Frye hearing was held to assess the general acceptance of plaintiffs' causation theory. The motion court granted the defendants' motion, precluding expert evidence and dismissing the personal injury claims, a decision that was upheld upon reargument and renewal. The appellate court affirmed, stating that association does not equate to causation and that plaintiffs failed to establish the general acceptance of their theory, specific causation, or reliable measurements of mold levels. The court also found good cause for the defendants' delayed motion for summary judgment.

Frye HearingExpert EvidenceCausationMold ExposureDampnessPersonal Injury ClaimSummary Judgment AffirmedScientific ReliabilityMedical Literature ReviewDifferential Diagnosis
References
10
Case No. 2020 NY Slip Op 07125
Regular Panel Decision
Nov 25, 2020

Luan Zholanji v. 52 Wooster Holdings, LLC

Luan Zholanji, a junior mechanic, sued 52 Wooster Holdings, LLC, and Foremost Contracting & Building, LLC, for personal injuries sustained from a ladder fall at a construction site in Manhattan. The plaintiff alleged violations of Labor Law §§ 200, 240 (1), and 241 (6), and common-law negligence. The Supreme Court denied the defendants' motion for summary judgment and granted the plaintiff's cross-motion for summary judgment on Labor Law § 240 (1) liability. On appeal, the Appellate Division modified the order by granting the defendants' motion to dismiss the Labor Law § 241 (6) cause of action, which the plaintiff did not oppose. The remainder of the Supreme Court's order was affirmed.

Construction AccidentPersonal InjuryLadder FallSummary JudgmentLabor Law ViolationWorkplace SafetyAppellate ReviewContractor LiabilityProperty Owner LiabilityNondelegable Duty
References
9
Case No. ADJ7963742
Regular
May 01, 2018

JAMES MCDONALD vs. HAROLD HUTCHENS AND DORICA ANDERSON,INDIVIDUALS, HAL, HUTCHINS, HAROLD HUTCHENS AND DORICA ANDERSON INDIVIDUALS; INTERCARE

The Workers' Compensation Appeals Board denied reconsideration of an amended findings and award. The applicant sustained an industrial injury to his right leg while employed by the defendants. The defendants contended the applicant was not their employee and did not meet the 52-hour threshold for residential employees. The Board found the WCJ's determination that the applicant exceeded 52 hours of work was supported by substantial evidence, despite conflicting witness testimony. Additionally, the defendants failed to prove the applicant was employed by a third party rather than them.

Labor Code section 3351(d)Labor Code section 3352(h)residential employee52-hour thresholdindependent contractorindustrial injurypetition for reconsiderationWCJcredibility determinationcontradictory testimony
References
6
Case No. ADJ8190306
Regular
Jan 07, 2013

Silvestre Sanchez vs. Robert E. Town, Allied Insurance, A Nationwide Company

This case concerns whether an injured worker, Silvestre Sanchez, was an employee of Robert E. Town for workers' compensation purposes. The Board granted reconsideration to reverse the WCJ's finding of employment. The primary issue was whether Sanchez met the 52-hour work requirement within the 90 days preceding injury under Labor Code section 3352(h), which excludes certain residential employees. The Board found that based on conflicting testimony regarding a second payment, the applicant did not prove he worked over 52 hours, thus excluding him from coverage.

Workers' Compensation Appeals BoardSilvestre SanchezRobert E. TownAllied InsuranceLabor Code section 3352(h)excluded employeeresidential employee90-day perioddate of injuryFindings of Fact
References
1
Case No. MISSING
Regular Panel Decision

People v. Young

An attorney representing an indigent defendant in Monroe County filed an application seeking reimbursement for legal services at a rate of $200 per hour, mirroring the rate charged by the Special Prosecutor, rather than the statutory rates under County Law § 722-b. The attorney argued that the significant disparity in hourly compensation violated the defendant's right to equal protection and that his qualifications justified the requested rate. The New York State Association of Criminal Defense Lawyers supported the application as amicus curiae, while Monroe County opposed it, arguing the request was untimely and lacked extraordinary circumstances. Presiding Judge Donald J. Mark, J., acknowledged the court's authority to grant compensation in excess of statutory limits under extraordinary circumstances but ultimately denied the application. The denial was based on the court's reasoning that an analogous argument was previously rejected, that linking assigned counsel rates to prosecutor rates would render County Law § 722-b ineffective, and that extraordinary circumstances could not be demonstrated prior to the conclusion of the criminal action. The court, however, reserved the right to reconsider an increased hourly fee upon the case's termination if such circumstances are then proven.

Assigned CounselLegal Aid CompensationCounty Law Section 722-bHourly Rate DisputeSpecial Prosecutor FeesIndigent RightsJudicial DiscretionExtraordinary CircumstancesMonroe County LawEqual Protection Challenge
References
16
Case No. MISSING
Regular Panel Decision

24 Hour Fuel Oil Corp. v. Long Island Rail Road

The case involves 24 Hour Fuel Oil Corp. suing Long Island Rail Road (LIRR) and Metropolitan Transportation Authority (MTA) after LIRR canceled its lowest bid for a diesel fuel supply contract and re-bid the contract. 24 Hour sought summary judgment and a permanent injunction, arguing LIRR violated federal regulations (49 C.F.R. § 18.36) by not awarding to the lowest bidder. Defendants cross-moved, claiming lack of federal jurisdiction. The court ruled that 24 Hour did not possess a private right of action under the cited federal regulation. Consequently, the complaint was dismissed for failure to state a claim, and the court declined supplemental jurisdiction over state law claims.

Summary JudgmentFederal Question JurisdictionPrivate Right of ActionContract BiddingProcurement RegulationsFederal Transit Administration (FTA)State Law ClaimsSupplemental JurisdictionGovernment ContractsBid Protest
References
23
Case No. FRE 0193970
Regular
Aug 07, 2007

STEVEN L. SMITH vs. IMC CHEMICAL, INC.

The Court of Appeal remanded this case for the Appeals Board to award attorney's fees for responding to the defendant's petition for writ of review. The applicant's attorney requested $15,600 for 52 hours of work, citing extensive research and numerous case citations. The Appeals Board awarded $3,750, finding the requested amount excessive and deeming 15 hours at $250/hour reasonable for the slightly above-average complexity of the appellate issues.

WCABLabor Code § 5801Petition for Writ of ReviewAttorney's FeesFifth Appellate DistrictRemandSupplemental AwardPetition for ReconsiderationSubstantial EvidenceNovel Issue
References
2
Case No. ADJ9651181
Regular
Jun 15, 2018

TONY BLAINE vs. GWENDOLYN PHILLIPS, FARMERS INSURANCE

The Workers' Compensation Appeals Board denied Tony Blaine's petition for reconsideration of a prior decision. The Board adopted the Administrative Law Judge's report, which found Blaine was not an employee based on insufficient hours worked (14 hours) to meet the 52-hour threshold under Labor Code §3352(h). Furthermore, the ALJ found Blaine's testimony regarding his date of injury inconsistent with his prior statements to doctors and documentation filed with the Board, suggesting the injury may have occurred before his employment with the defendant. The petition was also deemed "skeletal" for lacking detailed arguments referencing the record.

Workers' Compensation Appeals BoardPetition for ReconsiderationAdministrative Law JudgeEmployee StatusWork Related InjuryLabor Code §3351(d)Labor Code §3352(h)Date of InjuryInconsistent TestimonyCredibility
References
0
Case No. ADJ7703888
Regular
Feb 29, 2012

MARIA LOPEZ vs. LUIS AND DOLORES MORALES, STATE FARM INSURANCE COMPANY

This case concerns Maria Lopez's claim for workers' compensation benefits following an alleged injury. The Workers' Compensation Appeals Board denied her petition for reconsideration. The Board adopted the WCJ's finding that Lopez was not credible regarding her work hours. Specifically, Lopez failed to demonstrate she worked the required 52 hours within the 90 days preceding her injury, thus excluding her from coverage under Labor Code § 3352(h).

Labor Code § 3352(h)Petition for ReconsiderationCredibility determinationResidential employeeMonetary requirementHousekeeperNinety-day periodFifty-two hoursDate of injuryPro per
References
1
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