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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. MISSING
Regular Panel Decision

New York State Ass'n of Nurse Anesthetists v. Novello

This is a dissenting opinion challenging the majority's conclusion that an association of New York Certified Registered Nurse Anesthetists (CRNAs) lacks standing to sue the Commissioner of Health. The CRNAs challenged new 'Guidelines' which stipulate that CRNAs should provide services in office-based surgery only under supervision by a physician, dentist, or podiatrist 'qualified by law, regulation or hospital appointment to perform and supervise the administration of the anesthesia.' The dissent argues that the Guidelines, though presented as recommendations, are effectively regulations that will severely injure CRNAs' employment opportunities by requiring the presence of an anesthesiologist, making CRNAs redundant due to cost-prohibitive duplication of services. The dissenting judge criticizes the majority for deeming the CRNAs' evidence of economic harm as 'speculation' despite extensive factual showings from affidavits, asserting that precedent supports standing in such cases.

CRNA supervisionStandingGuidelines as regulationsEconomic injuryNurse anesthetistsAnesthesiologist supervisionOffice-based surgeryHealthcare regulationsJudicial dissentPhysician qualification
References
4
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. ADJ4503926
Regular
Mar 18, 2013

IVAN GALAVIZ vs. HB PARCO CONSTRUCTION, INC., OLD REPUBLIC GENERAL INSURANCE

The Workers' Compensation Appeals Board denied the applicant's petition for reconsideration. The applicant argued that due process was violated, evidence was not adequately discussed, and findings of fact did not support the decision. The Board adopted the WCJ's report, which found the applicant failed to submit timely briefs and objections to rating instructions. The WCJ also determined that the evidence did not support the application of Almarez/Guzman, and the strict application of AMA Guidelines was appropriate.

WORKERS' COMPENSATION APPEALS BOARDPETITION FOR RECONSIDERATIONDENIEDWCJ REPORTDUE PROCESSEVIDENCEFINDINGS OF FACTOPINION AND DECISIONAMEDEPOSITION
References
1
Case No. SBR 0325667
Regular
Apr 29, 2008

JAMES PERRINE vs. THE TIRE GUYS, STATE COMPENSATION INSURANCE FUND

This case concerns an applicant who sustained an industrial injury to his right elbow and upper extremity, resulting in work restrictions despite a 0% whole person impairment rating under AMA guidelines. The Workers' Compensation Appeals Board affirmed the WCJ's decision that the applicant is a Qualified Injured Worker (QIW) entitled to vocational rehabilitation services. The Board found that the applicant's work restrictions constitute an impairment of earning capacity and a competitive handicap, thus qualifying him for benefits under former Labor Code section 4635(a).

Workers Compensation Appeals BoardFindings and AwardCompromise and Releasevocational rehabilitationqualified injured worker (QIW)VRMApermanent disabilityAMA GuidelinesLabor Code 139.5Labor Code 4635
References
8
Case No. ADJ4141215 (MON 0288595) ADJ4160601 (MON 0288596) ADJ2249717 (MON 0300098)
Regular
Dec 27, 2011

DOREEN LABOY vs. STATE OF CALIFORNIA, DEPARTMENT OF MENTAL HEALTH, Legally Uninsured; STATE COMPENSATION INSURANCE FUND / STATE CONTRACT SERVICES, Adjusting Agency

The Workers' Compensation Appeals Board (WCAB) denied the defendant's Petition for Reconsideration, finding their argument regarding AMA Guidelines irrelevant due to a prior stipulation to the 1997 Rating Schedule. The WCAB granted removal to issue notices of intention to impose sanctions and award attorney's fees/costs against the defendant and their counsel. This action is based on the defendant's frivolous and bad-faith tactics in raising an issue for the first time on reconsideration that was not previously litigated or argued. The defendant's petition is deemed without merit and solely intended to cause unnecessary delay.

LABOYDOREENSTATE OF CALIFORNIADEPARTMENT OF MENTAL HEALTHSTATE COMPENSATION INSURANCE FUNDJOINT FINDINGS AND AWARDPETITION FOR RECONSIDERATIONREMOVALNOTICES OF INTENTIONORDER TO PAY EXPENSES
References
6
Case No. ADJ7904815
Regular
Apr 10, 2014

TED MARTINEZ vs. CITY OF BAKERSFIELD

This case concerns Ted Martinez's workers' compensation claim against the City of Bakersfield for industrial psychiatric and Valley Fever injuries. The Board granted reconsideration to review the $41\%$ permanent disability award, which the defendant argued was based on an Agreed Medical Examiner's (AME) opinion that failed to comply with *Almaraz/Guzman II* guidelines. The Board found the AME's opinion lacked sufficient explanation for deviating from the AMA Guides and thus was not substantial evidence. Consequently, the Board affirmed the initial findings of injury but deferred permanent disability and attorney fees for further development of the record at the trial level.

Workers' Compensation Appeals BoardPsychiatric injuryValley FeverCoccidioidomycosisContinuous traumaPermanent disability ratingAgreed Medical Examiner (AME)Whole Person Impairment (WPI)Almaraz/Guzman IIAMA Guides
References
5
Case No. ADJ1804234
Regular
May 26, 2009

Patrick MacAULEY vs. COUNTY OF VENTURA, CORVEL OXNARD

The Workers' Compensation Appeals Board granted reconsideration and rescinded a previous award finding the applicant sustained 66% permanent disability. The defendant employer argued the original award relied on an incorrect permanent and stationary date provided by the Agreed Medical Examiner (AME), who later admitted his initial report was in error. The Board agreed that the medical record needed further development due to the AME's admitted error and the resulting inaccurate permanent and stationary date. The case is returned to the trial level for further proceedings, including the defendant's opportunity to challenge the impairment rating under AMA Guidelines and diminished future earning capacity.

Workers' Compensation Appeals BoardPatrick MacAuleyCounty of VenturaCorvel Oxnardcumulative trauma injuryheart and circulatory systemdeputy sheriffpermanent disabilityAgreed Medical Examiner (AME)Dr. Ira Monosson
References
3
Case No. ADJ6957361
Regular
Jan 12, 2012

ROBERTO BARAJAS vs. FRESNO UNIFIED SCHOOL DISTRICT

This case concerns a petition for reconsideration by Fresno Unified School District regarding a workers' compensation award for Roberto Barajas. The District challenged the permanent disability rating, arguing the Agreed Medical Examiner improperly included grip strength loss alongside range of motion limitations, contrary to AMA Guides guidelines. Additionally, the District contested a 10% penalty for delayed permanent disability advances and sought a reduction in benefits based on an offer of regular work. The Workers' Compensation Appeals Board denied reconsideration, affirming the WCJ's findings on the permanent disability rating by finding the AME appropriately applied *Almaraz/Guzman II* principles for calculating impairment. The Board also upheld the penalty for delayed advances and rejected the District's claim regarding work offer reductions.

Workers' Compensation Appeals BoardFresno Unified School DistrictRoberto BarajasFindings of Fact and Awardpermanent disabilityright wrist injuryright hand injuryright finger injurygroundskeeper/gardenerLabor Code section 4650
References
3
Case No. CV-23-1298
Regular Panel Decision
May 30, 2024

In the Matter of the Claim of Michael Garofalo

Michael Garofalo, a lineman, sustained a left hand crush injury in January 2020 while working for Verizon New York, Inc. His workers' compensation claim was established. Following a permanency evaluation, his treating physician, Brian J. Harley, assessed a 35% schedule loss of use (SLU) of the left hand, using the 2012 New York State Guidelines for Determining Impairment. An independent medical examiner, Thomas R. Haher, initially concurred but later revised his opinion to 50% SLU based on the 2018 Guidelines. A Workers' Compensation Law Judge (WCLJ) adopted Harley's 35% SLU opinion, which the Workers' Compensation Board upheld. On appeal, the Appellate Division found that Harley improperly relied on the 2012 Guidelines instead of the applicable 2018 Guidelines, as the first medical evaluation occurred after January 1, 2018. The court determined that the Board's decision, relying on Harley's erroneous application of the guidelines, lacked substantial evidence. The decision was reversed, and the matter was remitted to the Workers' Compensation Board for a new determination of the appropriate SLU percentage.

Workers' CompensationSchedule Loss of UseLeft Hand InjuryMedical Guidelines2018 Impairment GuidelinesAppellate ReviewRemittalMedical Opinion ConflictTraumatic InjuryFractures
References
7
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