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

Case No. 2018 NY Slip Op 00588 [158 AD3d 866]
Regular Panel Decision
Feb 01, 2018

Matter of Jelic (Ama Research Labs. Inc.--Commissioner of Labor)

Vera Jelic, a laboratory technician, was terminated from AMA Research Laboratories Inc. due to repeated tardiness and absenteeism. She filed for unemployment insurance benefits, which were initially granted by the Department of Labor and affirmed by an Administrative Law Judge and the Unemployment Insurance Appeal Board. The employer appealed, arguing that Jelic's actions constituted disqualifying misconduct. The Appellate Division, Third Department, affirmed the Board's decision, finding that while the employer had cause for termination, Jelic's conduct did not demonstrate a willful and wanton disregard of the employer's interest to rise to the level of disqualifying misconduct. The court noted that disciplinary actions occurred after a work-related injury and that Jelic was not given an opportunity to correct her behavior prior to termination.

Unemployment InsuranceDisqualifying MisconductTardinessAbsenteeismEmployment TerminationWillful and Wanton DisregardSubstantial EvidenceAppellate DivisionLabor LawEmployer Interest
References
6
Case No. 2019 NY Slip Op 03692
Regular Panel Decision
May 09, 2019

Matter of Global Liberty Ins. Co. v. McMahon

Global Liberty Insurance Co. appealed an order denying its petition to vacate an arbitration award in favor of Mark S. McMahon, M.D. The dispute stemmed from a no-fault claim where Global partially paid for arthroscopic surgery, relying on the CPT Assistant newsletter for its valuation. The lower arbitrator and master arbitrator refused to consider CPT Assistant, leading to an award for McMahon. The Appellate Division determined that the Official New York Workers' Compensation Medical Fee Schedule, applicable to no-fault claims, incorporates the CPT book which references CPT Assistant. Consequently, the court found the arbitration award legally incorrect due to the exclusion of CPT Assistant. The court reversed the Supreme Court's order, granted Global's petition, vacated the award, and remanded the matter for a new arbitration.

No-Fault LawInsurance LawArbitration AwardVacate AwardMedical Fee ScheduleCPT AssistantWorkers' Compensation BoardAppellate ReviewStatutory InterpretationRemand
References
2
Case No. MISSING
Regular Panel Decision

Clancey v. American Management Ass'n, Inc.

This age discrimination action involves plaintiffs alleging violations of the Age Discrimination in Employment Act (ADEA) and New York State statutes against defendant American Management Association (AMA). AMA moved for summary judgment, arguing that the plaintiffs were independent contractors, not employees, and thus not eligible for ADEA claims. The court, applying the 'economic realities' test consistent with Second Circuit precedent, found numerous disputed material facts regarding the plaintiffs' employment status. These facts included AMA's control over plaintiffs, their opportunity for profit or loss, the duration of their working relationship, and the integral nature of their work to AMA's business. Consequently, the court denied AMA's motion for summary judgment, determining that genuine issues of material fact exist concerning whether the plaintiffs were employees or independent contractors.

Age DiscriminationEmployment LawIndependent Contractor StatusSummary Judgment MotionEconomic Realities TestADEAFLSAWorker ClassificationControl TestSecond Circuit Precedent
References
7
Case No. ADJ10187704, ADJ10924724
Regular
May 17, 2018

STEVEN CASE vs. GOLDEN GATE BRIDGE HIGHWAY AND TRANSPORTATION DISTRICT

The Workers' Compensation Appeals Board granted reconsideration to increase applicant's permanent disability rating for bilateral shoulder injury from 9% to 38%. The Board found the Agreed Medical Evaluator's (AME) alternative rating, based on strength loss, was substantial medical evidence and properly considered within the AMA Guides. The WCJ erred in applying an overly restrictive interpretation of "complex or extraordinary" cases for deviating from strict AMA Guides ratings. The AME's use of strength loss data from the AMA Guides, even for an age outside the specified range, was permissible under the *Almaraz-Guzman* line of cases when justified by clinical judgment.

Workers' Compensation Appeals BoardJoint Findings and AwardPetition for ReconsiderationAgreed Medical Evaluator (AME)permanent disability ratingbilateral shouldersorthopedic AMEAMA GuidesAlmaraz-Guzmanstrength loss index
References
20
Case No. MISSING
Regular Panel Decision
Jan 19, 2005

Maes v. 408 W. 39 LLC

Plaintiff, employed by AMA Erectors, was injured when a boom truck cable snapped while he was removing a banner advertisement. He initiated action against the building owner, 408 W 39 LLC, and Vista, alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). Vista, in turn, commenced a third-party action against AMA Erectors and AMA Holdings. The Supreme Court's initial ruling denied plaintiff's motion, denied Vista's cross-motion, and granted third-party defendants' cross-motions. On appeal, the judgment was modified, dismissing all of plaintiff's claims against Vista and affirming the dismissal of Vista's third-party claims as academic.

Labor LawSummary JudgmentSafe WorkplaceStatutory InterpretationBoom Truck AccidentPremises LiabilityIndemnificationContractual IndemnityBreach of ContractThird-Party Action
References
9
Case No. 2016-329 S C
Regular Panel Decision
Apr 27, 2017

Spineisland for Chiropractic, P.C. v. 21st Century Advantage Ins. Co.

This case involves an appeal by Spineisland For Chiropractic, P.C., acting as an assignee, against 21st Century Advantage Insurance Company concerning first-party no-fault benefits. The plaintiff sought to recover for services billed under CPT code 95831. The District Court of Suffolk County had previously granted the defendant's motion for summary judgment, asserting that the defendant had appropriately paid the plaintiff based on the workers' compensation fee schedule. On appeal, the Appellate Term affirmed the lower court's decision. The Appellate Term found that the defendant had adequately demonstrated the proper application of CPT code 95833 for the services billed under CPT code 95831, and the plaintiff failed to present a triable issue of fact.

No-fault benefitsSummary judgmentCPT codeWorkers' compensation fee scheduleAppellate TermSuffolk CountyAssigneeInsurance disputeChiropractic servicesMedical billing
References
1
Case No. 570163/16
Regular Panel Decision
Sep 19, 2016

Urban Well Acupuncture, P.C. v. Erie Ins. Co. of N.Y.

Defendant appealed from an order of the Civil Court of the City of New York, New York County (Paul A. Goetz, J.), entered March 12, 2015, which denied its motion for summary judgment dismissing the complaint. The Appellate Term, First Department, modified the order by granting defendant partial summary judgment dismissing plaintiff's claim for first-party no-fault benefits billed under CPT codes 97813 and 97814; as modified, order affirmed, without costs. The court found that the defendant established it timely denied the no-fault claims for CPT codes 97813 and 97814 because the amounts charged were in excess of the applicable worker's compensation fee schedule. Plaintiff failed to raise a triable issue regarding the efficacy of the mailing or the fee calculation for these claims. However, triable issues remain concerning whether defendant properly denied the claim for $70 billed under CPT code 99202 (initial evaluation).

Summary JudgmentNo-Fault BenefitsCPT CodesMedical BillingAppellate ReviewFirst-Party ClaimsInsurance DenialsWorker's Compensation Fee ScheduleTriable Issues
References
4
Case No. 2016-119 K C
Regular Panel Decision
Jul 06, 2018

Jing Luo Acupuncture, P.C. v. NY City Tr. Auth.

This case involves an appeal from an order and judgment concerning a claim for first-party no-fault benefits for acupuncture services. The plaintiff, Jing Luo Acupuncture, P.C., as assignee of Sarah Adams, sought to recover unpaid balances from the NY City Transit Authority. The Civil Court initially granted the plaintiff's motion for summary judgment and denied the defendant's cross-motion. On appeal, the Appellate Term reversed the judgment, finding that the plaintiff failed to establish prima facie entitlement to summary judgment. The court also held that the defendant was not precluded from interposing its fee schedule defense, as it had fully paid for services billed under CPT codes 97811, 97813, and 97814 according to the workers' compensation fee schedule. Consequently, the plaintiff's motion for summary judgment was denied, and the defendant's cross-motion was granted in part for those specific CPT codes, while denied for CPT code 99262 and the seventh cause of action.

Acupuncture ServicesNo-Fault BenefitsSummary JudgmentFee Schedule DefenseWorkers' Compensation Fee ScheduleCPT CodesAppellate ReviewInsurance LawTimely DenialFirst-Party Benefits
References
14
Case No. 2016-1458 K C
Regular Panel Decision
Nov 09, 2018

Pavlova v. Allstate Ins. Co.

This case concerns an appeal regarding first-party no-fault benefits sought by Ksenia Pavlova, D.O., as assignee of Cosby Reavis, against Allstate Insurance Company. The Civil Court had denied the plaintiff's motion for summary judgment and partially granted the defendant's cross-motion, dismissing claims for services billed under CPT code 20999, arguing plaintiff was not entitled to payment under the workers' compensation fee schedule. The Appellate Term modified the Civil Court's order, finding that Allstate's denial of claims for CPT code 20999 was without merit because the insurer failed to request additional documentation as required by 11 NYCRR 65-3.5(b) for "By Report" codes. However, the Appellate Term affirmed the denial of the plaintiff's summary judgment motion, noting the plaintiff failed to demonstrate that claims were not timely denied or that denials were conclusory. The matter was remitted to the Civil Court for a determination on the medical necessity of the CPT code 20999 services, a ground not previously addressed.

No-Fault BenefitsSummary JudgmentAppellate TermCPT Code 20999Workers' Compensation Fee ScheduleMedical NecessityClaim DenialVerification Request11 NYCRR 65-3.5(b)Insurance Law
References
0
Case No. ADJ1078163 (BAK 0145426), ADJ3341185 (SJO 0254688)
Significant
Feb 03, 2009

Mario Almaraz, Joyce Guzman vs. Environmental Recovery Services (a.k.a. ENVIROSERVE), State Compensation Insurance Fund, Milpitas Unified School District, Permissibly Self-Insured, Keenan & Associates, Adjusting Agent

The Appeals Board held that the AMA Guides portion of the 2005 Schedule for Rating Permanent Disabilities is rebuttable by showing that an impairment rating based on the AMA Guides would be inequitable, disproportionate, and not a fair and accurate measure of the employee’s permanent disability.

AMA Guidesrebuttable presumptionpermanent disability rating2005 Scheduleimpairment determinationmedical opinionevidentiary standardequitable awardvocational specialistsactivities of daily living
References
61
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