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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

United States v. Perez

This Order addresses challenges by six defendants to the constitutionality of the Sentencing Reform Act of 1984 and the Sentencing Guidelines. District Judge Nowlin found that the Act violates the separation of powers doctrine and Article I, Section 7 of the U.S. Constitution, particularly concerning the composition and authority of the Sentencing Commission and the lack of presidential presentment for the Guidelines. The Court further ruled that the Sentencing Guidelines infringe upon defendants' due process rights by unduly restricting judicial discretion in sentencing and limiting the consideration of individual circumstances. While concluding the unconstitutional provisions could be severed, the Court directed that, pending appellate review, sentences for offenses committed after November 1, 1987, should be determined as if committed before that date, accounting for the absence of parole.

Sentencing Reform ActSentencing GuidelinesConstitutional LawSeparation of PowersArticle IDue ProcessJudicial DiscretionFederal Criminal JusticeJudicial IndependencePresentment Clause
References
42
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

Jefferies v. McKee Foods Corp.

The employer, McKee Foods Corporation, appealed a trial court's award of 50% permanent partial disability to employee Eva Mae Jefferies in a workers' compensation case. The core dispute was whether the medical impairment rating should be calculated using the Fourth or Fifth Edition of the AMA Guidelines. Dr. Hodges initially rated Jefferies at 8% impairment under the Fourth Edition, which increased to 25% under the Fifth Edition without any change in her medical condition. The Supreme Court ruled that the trial court erred in applying the Fifth Edition and held that the Guidelines in effect at the time of maximum medical improvement (Fourth Edition) should apply. The judgment of the trial court was reversed, and the case was remanded for further proceedings.

Workers' Compensation LawMedical Impairment RatingAMA Guidelines (Fourth Edition)AMA Guidelines (Fifth Edition)Maximum Medical Improvement (MMI)Vocational DisabilityStatutory InterpretationTennessee Supreme CourtAppellate ReviewReversal and Remand
References
7
Case No. MISSING
Regular Panel Decision

Rizvi v. Department of Homeland Security

Advanced Medical Automation Systems, Inc. (AMAS), along with Syed Rizvi and his family, sued the United States Citizenship and Immigration Services (USCIS) after the denial of AMAS's I-140 visa petition and the family's I-485 applications. The plaintiffs challenged USCIS's findings regarding AMAS's ability to pay the proffered wage and Rizvi's qualifications and experience. The court had previously dismissed several related claims, leading to cross-motions for summary judgment on AMAS's challenge to the I-140 denial. Ultimately, the court granted USCIS's motion and denied AMAS's, affirming the agency's decision. This decision was based on AMAS's failure to demonstrate a continuing ability to pay the proffered wage from the priority date, as well as issues with Rizvi's educational equivalency and work experience.

Immigration LawVisa Petition DenialUSCIS AdjudicationAbility to Pay RequirementProffered WageAdministrative Procedure ActSummary JudgmentEmployment-Based VisaLabor CertificationPriority Date Rule
References
21
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
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