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

Case No. ADJ1856849
Regular
Aug 21, 2014

ROGELIO MERLOS vs. AJ SLENDERS DAIRY, ZENITH INSURANCE COMPANY

This Workers' Compensation Appeals Board (WCAB) notice indicates they are reconsidering a prior ruling that excluded defendant's exhibits A through M as irrelevant. The WCAB believes these exhibits may be relevant to the issues presented at trial. Absent timely written objection demonstrating good cause, these exhibits will be admitted into evidence. This decision will inform the final determination on the defendant's petition for reconsideration.

Petition for ReconsiderationExhibits A through MWCJNotice of Intention to Admit EvidenceWorkers' Compensation Appeals BoardWorkers' Compensation Administrative Law JudgeGood CauseWritten ObjectionDemonstration of Good CauseService of Notice
References
0
Case No. MISSING
Regular Panel Decision

Forshay v. Star Dairy, Inc.

Plaintiff James M. Forshay was injured in a vehicle accident while riding with defendant Harry J. Huffman. At the time of the accident, both Forshay and Huffman were employed by Mountain Dairies, Inc. Forshay initiated a lawsuit, but defendants argued that the action was barred under Workers’ Compensation Law § 29 (6) due to the co-employee status of Forshay and Huffman. The Supreme Court granted defendants' cross-motion for summary judgment and denied Forshay's subsequent motion for reconsideration. The appellate court affirmed the orders, concluding that defendants provided sufficient proof of co-employment and that the plaintiff failed to diligently pursue discovery to refute this claim.

Workers' CompensationCo-employeeSummary JudgmentAffirmative DefenseDiscoveryAppellate ReviewPersonal InjuryVehicle AccidentNew York LawLitigation
References
9
Case No. MISSING
Regular Panel Decision

Dittert v. Oak Tree Farm Dairy, Inc.

Plaintiffs Jason Dittert, Anthony Lombardo, and Walter J. Finn sued Oak Tree Farm Dairy, Inc., for personal injuries sustained during armed robberies while employed by Dairy Barn Stores, Inc. An earlier action against Dairy Barn was dismissed due to Workers' Compensation being the exclusive remedy. Plaintiffs argued Oak Tree was the 'alter ego' of Dairy Barn or a 'joint venturer,' but this claim was also barred by Workers' Compensation Law. On appeal, plaintiffs contended a Dairy Barn District Supervisor, allegedly an Oak Tree employee, breached a duty by failing to order a store closure after a robbery warning. The court determined the supervisor was a co-employee, rendering the action barred by Workers' Compensation Law, and found no proximate cause for the injuries. Consequently, Oak Tree's cross-motion for summary judgment was granted, and the complaint against it was dismissed.

Personal InjuryWorkers' Compensation LawSummary JudgmentAlter Ego DoctrineVicarious LiabilityCo-employee DefenseProximate CauseAppellate ProcedureComplaint DismissalEmployer Liability
References
5
Case No. MISSING
Regular Panel Decision
Dec 12, 2002

Claim of Cacciatore v. AJ Hunter Construction Co.

The claimant, a part owner and president of AJ Hunter Construction Company and Hunter Home Construction Corporation, was injured while operating a backhoe at a construction site owned by Hunter Home. He sought workers' compensation benefits under AJ Hunter's insurance policy, which primarily covered cabinet installation and sales. Both a Workers’ Compensation Law Judge and the Workers’ Compensation Board disallowed the claim, finding that the claimant was not acting as an employee of either corporation and that the injury was not covered by AJ Hunter's policy. The appellate court affirmed this decision, concluding that the backhoe operation was unrelated to AJ Hunter's business as described in the insurance application, thus the policy did not provide coverage for the injury.

Workers' CompensationInsurance CoverageEmployment StatusBackhoe AccidentConstruction IndustryBusiness OwnershipPolicy ExclusionsAppellate ReviewNew York LawSuffolk County
References
3
Case No. MISSING
Regular Panel Decision

Fernbach v. Raz Dairy, Inc.

The Regional Director of the National Labor Relations Board (NLRB), Karen P. Fernbach, initiated this action against Raz Dairy, Inc. and Metro Dairy Corp. for a temporary injunction under Section 10(j) of the National Labor Relations Act. The petition alleged that the employers engaged in unfair labor practices, including unlawful interrogations, threats of plant closure and discharge, and the termination of employee Luis Munoz for his union activities. The court found reasonable cause to believe the respondent had committed these practices, noting evidence of anti-union animus, disparate treatment, and pretextual reasons for Mr. Munoz's dismissal. Concluding that immediate injunctive relief was just and proper to prevent irreparable harm to employees' Section 7 rights and restore the pre-violation status quo, the court granted the petition.

Labour LawUnfair Labor PracticesNLRA Section 10(j)Temporary InjunctionEmployee RightsUnionizationCoercionInterrogationRetaliatory DischargeReinstatement
References
51
Case No. CV-23-1672
Regular Panel Decision
Apr 24, 2025

Matter of Vujeva v. Dairy Conveyor Corp.

The claimant, Jozo Vujeva, sustained injuries to both shoulders while working as a mechanic. Following permanency evaluations, a dispute arose regarding the schedule loss of use (SLU) percentages, with the claimant's physician and the carrier's consultant providing differing findings. The Workers' Compensation Law Judge (WCLJ) and the Workers' Compensation Board rejected the claimant's physician's findings due to non-compliance with the 2018 Workers' Compensation Guidelines for Determining Impairment, specifically regarding the use of a goniometer and repeat measurements. The Board instead credited the carrier's consultant's findings, awarding a 34.5% SLU of the right shoulder and a 27% SLU of the left shoulder. The Appellate Division, Third Department, affirmed the Board's decision, emphasizing that the Board's determination was supported by substantial evidence and that opinions not supported by objective findings consistent with the guidelines may have little evidentiary value.

Workers' Compensation LawSchedule Loss of Use (SLU)Shoulder InjuryMaximum Medical Improvement (MMI)Range of Motion (ROM)GoniometerMedical Impairment GuidelinesEvidentiary ValueExpert Medical OpinionSubstantial Evidence
References
10
Case No. ADJ1856849 (FRE 0246669)
Regular
Oct 21, 2013

ROGELIO MERLOS vs. A.J. SLENDERS DAIRY, ZENITH INSURANCE COMPANY

The Workers' Compensation Appeals Board (WCAB) granted the defendant's petition for removal, rescinded the August 1, 2013, orders, and returned the case to the trial level. The WCAB found that the prior orders were not final decisions and thus dismissed the petition for reconsideration. However, removal was granted because the Administrative Law Judge failed to comply with procedural requirements for record-keeping and providing a summary of evidence and grounds for the decision, necessitating further proceedings.

Workers' Compensation Appeals BoardPetition for RemovalPetition for ReconsiderationMedical Provider NetworkMPN documentsLabor Code section 5313WCAB Rule 10566mandatory settlement conferenceexpedited hearingDeclaration of Readiness to Proceed
References
1
Case No. MISSING
Regular Panel Decision

Claim of Kedjierski v. Dellwood Dairy

The Workers’ Compensation Board affirmed an award to the claimant for continued causally related disability, stemming from an accidental aggravation of pre-existing cystic fibrosis due to milk dust exposure during employment at Dellwood Dairy. This decision, filed on November 17, 1980, upheld a prior Workers’ Compensation Law Judge's decision from October 5, 1979. The employer and its insurance carrier appealed this decision. The appellate court found substantial evidence to support the Board's determination, noting that the Board was entitled to give greater weight to the reports and testimony of Dr. Bonforte and Dr. Maxon. The appeal decision affirmed the Workers’ Compensation Board's ruling, with costs.

Workers' CompensationDisability AwardCystic FibrosisMedical EvidenceAppellate ReviewCausally Related DisabilityBoard DecisionEmployer AppealInsurance Carrier AppealMedical Testimony
References
2
Case No. 2018 NY Slip Op 04616 [162 AD3d 1356]
Regular Panel Decision
Jun 21, 2018

Matter of Elias-Gomez v. Balsam View Dairy Farm

Claimant Antonio Elias-Gomez, a farmhand, sought workers' compensation benefits for a right shoulder injury allegedly sustained in May 2014 while assisting in a difficult calf birth. The employer and carrier controverted the claim, citing lack of timely notice and absence of a compensable accident. A Workers' Compensation Law Judge initially established the claim but the Workers' Compensation Board later modified, denying benefits on the grounds that claimant did not sustain an accident in the course of employment. The Appellate Division, Third Department, affirmed the Board's decision, finding it supported by substantial evidence. The court deferred to the Board's credibility determinations, which included discrediting claimant's account of a calf birth on the alleged injury date and noting inconsistent histories regarding his shoulder pain and injury mechanism.

Workers' Compensation ClaimEmployment InjuryShoulder InjuryFarm AccidentCausal RelationshipSubstantial Evidence ReviewCredibility FindingNotice of InjuryAppellate ReviewWorkers' Compensation Board
References
17
Case No. MISSING
Regular Panel Decision
Mar 08, 1988

Claim of Goodman v. Pollio Dairy Products

In 1979, the claimant's husband, Ralph Goodman, died during employment, leading to the claimant being awarded death benefits by the Workers’ Compensation Board. The employer, Pollio Dairy Products, and its insurance carrier objected, arguing for an offset of Social Security survivors’ benefits under Workers’ Compensation Law § 16 (1-c). Although initially deemed ineligible, the claimant began receiving Social Security benefits in 1982, prompting the carrier to request a reopening of the case for the offset. The Board ultimately denied the carrier's request, ruling that an offset only applies if benefits are received at the time of the original award, not subsequently. The employer and carrier appealed, but the Board's decision was affirmed, with the court finding its interpretation of the ambiguous statute rational and reasonable.

Death BenefitsSocial Security OffsetWorkers' Compensation LawStatutory InterpretationSurvivors BenefitsEmployer AppealCarrier AppealWorkers' Compensation BoardStatutory AmbiguityAdministrative Interpretation
References
2
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