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

Case No. ADJ3292033 (LBO0369559) ADJ4279112 (LBO0369560)
Regular
Mar 10, 2011

NORMA BARAJAS vs. DISNEYLAND RESORT, DISNEY WORLDWIDE SERVICES

The defendant seeks reconsideration of a permanent disability award, arguing the 15% increase under Labor Code § 4658(d)(2) should only apply to payments made after 60 days from the applicant's permanent and stationary date. The applicant contends the increase applies to the entire award except for the first 60 days' payments due to the employer's untimely offer of modified work. The Appeals Board granted reconsideration, rescinded the prior award, and remanded the case for further proceedings to clarify the application of the 15% increase. The Board noted that prompt permanent disability advances by the employer might exclude those payments from the § 4658(d)(2) calculation.

Workers' Compensation Appeals BoardDisneyland ResortLabor Code section 4658(d)(2)permanent disability awardpermanent and stationaryAgreed Medical Examinerstreating physicianoffer of modified workpetition for reconsiderationFindings and Award
References
1
Case No. MISSING
Regular Panel Decision

Claim of Hart v. Pageprint/Dekalb

The case involves an appeal from a Workers' Compensation Board decision that imposed a late payment penalty on an employer's carrier. The claimant, suffering from permanent partial disability due to bilateral carpal tunnel syndrome, entered into a waiver agreement with the carrier for $35,200. Although the Board approved the agreement without a hearing, the carrier paid the claimant 20 days after approval, exceeding the 10-day limit, leading to a $7,040 penalty. The appellate court found the streamlined procedures used for approval invalid because they conflicted with 12 NYCRR 300.36, meaning the agreement was never properly approved and thus the 10-day limitations period for payment never commenced. Consequently, the penalty imposition was reversed, and the matter was remitted to the Board for a proper hearing on the agreement.

Workers' Compensation Law § 32Late Payment PenaltyWaiver AgreementBoard ApprovalStreamlined ProceduresAdministrative LawJudicial ReviewRemandWorkers' Compensation BoardOccupational Disease
References
5
Case No. MISSING
Regular Panel Decision
Feb 20, 2024

Brown v. Window King LLC

Plaintiff Mary Elena Brown sustained personal injuries when a screwdriver dropped by a window installer, Wilson Rivera, hit her head in a parking lot of a condominium building managed by Stillman Management Inc. The installer was working for Window King LLC. Stillman moved for summary judgment, arguing it owed no duty, but the court found questions of fact regarding its control over the premises. Window King also sought summary judgment, contending Rivera was an independent contractor, but issues of fact arose regarding Rivera's employment status and potential vicarious liability. The Supreme Court initially granted Window King's motion and denied Stillman's. The Appellate Division modified the Supreme Court's order, reinstating Stillman's cross-claims against Window King, and otherwise affirmed, finding unresolved factual disputes regarding both Stillman's duty of maintenance and Window King's potential vicarious liability for Rivera's negligence.

Summary judgmentPersonal injuryVicarious liabilityRespondeat superiorIndependent contractorProperty managementPremises liabilityAppellate reviewCross-claimsTort liability
References
10
Case No. 2023 NY Slip Op 00704 [213 AD3d 1050]
Regular Panel Decision
Feb 09, 2023

Matter of Paka (Same Day Delivery Inc.--Commissioner of Labor)

The case involves Jacques Paka, a delivery driver, who applied for unemployment insurance benefits after working for Same Day Delivery Inc. The Department of Labor initially determined Paka was an employee, making Same Day liable for contributions. The Unemployment Insurance Appeal Board initially overruled this, finding Paka to be an independent contractor. However, upon reconsideration requested by the Commissioner of Labor, the Board rescinded its prior decision and sustained the Department's original determination, finding an employment relationship. The Appellate Division, Third Department, affirmed the Board's decision, rejecting Same Day's arguments against the reopening of the case and finding substantial evidence to support the Board's conclusion that Same Day exercised sufficient control over Paka to establish an employment relationship. The Court also affirmed that these findings apply to similarly situated individuals.

Unemployment InsuranceIndependent ContractorEmployment RelationshipControl TestAppellate ReviewUnemployment Insurance Appeal BoardLabor LawUnemployment BenefitsDelivery DriverSubstantial Evidence
References
11
Case No. MISSING
Regular Panel Decision
Jul 01, 2002

Johnson v. Shelmar Corp.

Claimant suffered work-related injuries in 1993, leading to a settlement approved on September 12, 2001, under Workers’ Compensation Law § 32. The settlement funds were mailed on September 24, 2001. Claimant sought a 20% penalty, arguing the payment was late according to Workers’ Compensation Law § 25 (3) (f) and 12 NYCRR 300.36 (g), as it exceeded the 10-day period post-approval. The Workers’ Compensation Board affirmed this penalty. However, the appellate court reversed the decision, applying General Construction Law § 25-a (1), which extends deadlines falling on a Saturday to the next business day, thus making the September 24th payment timely. The court also noted that the Board could have exercised discretion to waive the deadline due to the operational disruptions caused by the September 11, 2001 attacks on the World Trade Center.

Late Payment PenaltyWorkers' Compensation SettlementStatutory Deadline ExtensionGeneral Construction LawRule DiscretionSeptember 11 Attacks ImpactTimeliness of PaymentAdministrative HearingWorkers' Compensation BoardJudicial Review
References
2
Case No. ADJ9123534
Regular
Jul 18, 2015

PHILLIP WARD vs. CITY OF FORT BRAGG, REDWOOD EMPIRE MUNICIPAL INSURANCE FUND

The Workers' Compensation Appeals Board granted reconsideration and amended an award, finding the defendant liable for a 15% increase in permanent disability benefits. This increase is due to the defendant's failure to offer the applicant qualified work within 60 days of his permanent and stationary status, as required by Labor Code section 4658(d)(2). While the applicant had retired, the Board found this did not excuse the employer from making a compliant work offer. The amended order clarifies the increase applies only to payments made 60 days after the Qualified Medical Evaluator's permanent and stationary report.

Labor Code section 4658(d)(2)permanent disability increaseoffer of workmodified workalternative workregular workpermanent and stationary60-day periodretirementCalPERS
References
4
Case No. ADJ3134805 (BAK 0148440)
Regular
Feb 11, 2011

VELGRACE SMITH vs. KERN COUNTY SUPERIOR COURT

This case concerns a defendant seeking reconsideration of a decision that awarded a 15% increase in permanent disability indemnity payments. The administrative law judge (WCJ) found the employer failed to offer modified work within 60 days of the applicant's condition becoming permanent and stationary, as required by Labor Code section 4658(d)(2). The Appeals Board granted reconsideration, finding the WCJ's literal interpretation of the statute would lead to absurd consequences given the retroactive nature of medical findings and delayed service of reports. The Board held the 60-day period begins when the employer has knowledge of both the permanent and stationary status and work restrictions, and remanded the case to determine if the employer's modified work offer remained consistent with updated restrictions.

Workers' Compensation Appeals BoardReconsiderationPermanent DisabilityModified WorkLabor Code Section 4658(d)AggravationCumulative InjuryAgreed Medical EvaluatorPermanent and Stationary DateWork Restrictions
References
3
Case No. MISSING
Regular Panel Decision

Casey v. D'Elia

The petitioner sought medical assistance for her hospitalized husband, but her application was denied by the Nassau County Department of Social Services due to perceived excess resources and improper calculation of expenses. The petitioner was also not informed of her right to a fair hearing. The State Commissioner of Social Services affirmed the denial and ruled that the initial denial was beyond review due to a missed 60-day request window. The court found that the local agency erred in calculating the petitioner's expenses and in failing to consider unpaid medical bills. Furthermore, the court determined that the 60-day limitation period should be tolled because the petitioner was never properly notified of it. Consequently, the court annulled the State Commissioner's determination and remitted the matter to the local agency to re-evaluate the petitioner's eligibility for medical assistance.

Medical AssistanceSocial Services LawCPLR Article 78Eligibility for BenefitsResource CalculationFair Hearing NoticeTolling of LimitationsAdministrative ReviewRemittal for ReconsiderationHospitalization Costs
References
7
Case No. 2022 NY Slip Op 02559
Regular Panel Decision
Apr 20, 2022

Ortega v. Panther Siding & Windows, Inc.

The plaintiff Rene Ortega was injured after falling from a roof while working as a foreman for a subcontractor, Golden Hammer Construction Group, Corp., which was working for Panther Siding & Windows, Inc. Ortega sued Panther Siding & Windows, Inc., alleging violations of Labor Law sections and common-law negligence. The Supreme Court granted the defendant's motion for summary judgment, dismissing the Labor Law § 240 (1) cause of action. On appeal, the Appellate Division, Second Department, affirmed this decision. The court found that Panther Siding & Windows, Inc., established it was neither the general contractor nor an agent of the owner at the accident site, thus lacking the nondelegable duty under Labor Law § 240 (1), and Ortega failed to raise a triable issue of fact.

Personal InjuryFall from heightLabor LawSummary JudgmentAppellate ReviewContractor LiabilitySubcontractorConstruction AccidentElevation-related riskSafety devices
References
4
Case No. ADJ6807374, ADJ6807475
Regular
Apr 25, 2011

CIIRISTINE OSTRANDER vs. COUNTY OF LOS ANGELES/SHERIFF'S DEPARTMENT

This case involves an employer's failure to provide an injured employee with timely notice of modified or alternative work following a determination of permanent and stationary status. While the employee eventually returned to her regular duties, the employer did not formally offer such positions within the 60-day window mandated by Labor Code section 4658(d)(2). Consequently, the employer is not entitled to a 15% decrease in permanent disability payments. However, the Appeals Board found that awarding the employee a 15% increase would elevate form over substance, given the employee's early return to regular work. Therefore, the Board rescinded the original award of a 15% increase and modified the decision to state there is no 15% adjustment under Labor Code section 4658(d).

Workers' Compensation Appeals BoardChristine OstranderCounty of Los Angeles/Sheriff's Departmentindustrial injuryrespiratory systemasthmainternal diseasepermanent disabilitypermanent and stationary (P&S) dateLabor Code section 4658(d)
References
2
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