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

Case No. 01-42217-REG
Regular Panel Decision

Ames Department Stores, Inc. v. Lumbermens Mutual Casualty Co. (In re Ames Department Stores, Inc.)

This document is a report and recommendation from Judge Robert E. Gerber concerning Ames Department Stores, Inc.'s motion to confirm exclusive jurisdiction in an adversary proceeding against Lumbermens Mutual Casualty Company. The proceeding, occurring under Ames' Chapter 11 bankruptcy, addresses the ownership of an $8 million trust account and alleged interference with the debtor's property. Judge Gerber recommends that the court possesses subject matter jurisdiction over all claims, asserting exclusive jurisdiction over specific claims involving automatic stay violations, marshaling, and equitable subordination. Furthermore, he advises that the McCarran-Ferguson Act does not mandate deferral to an Illinois state court for these issues, and the First Assuming Jurisdiction Doctrine is applicable to certain in rem claims.

Bankruptcy LawJurisdictional DisputeExclusive JurisdictionAutomatic Stay ViolationMcCarran-Ferguson ActIn Rem JurisdictionAdversary ProceedingChapter 11 BankruptcySurety BondsCash Collateral
References
65
Case No. MISSING
Regular Panel Decision

Ames v. Norstar Building Corp.

This dissenting opinion concerns the Labor Law § 240 (1) claim brought by plaintiff Leigh Ames, a construction worker who suffered injuries from a fall at an elevated work site. Justices Gorski and Lawton argue against the majority's decision to grant defendants' motion for summary judgment, asserting that defendants failed to demonstrate a prima facie showing for dismissal. The dissent contends that Ames's accident, involving a fall while attempting to access an elevated work area, falls under the protections of Labor Law § 240 (1), challenging the majority's conclusion that a doorway threshold is not an elevated work site. Citing numerous precedents, the dissenting justices maintain that the lack of appropriate safety devices for elevated access constitutes a violation of the Labor Law. Therefore, they advocate for denying summary judgment to the defendants and modifying the existing order.

Construction accidentElevated work siteSummary judgmentLabor Law violationDissenting opinionLadder safetyAccess to work sitePrima facie caseWorker protectionPersonal injury
References
15
Case No. ADJ7 170139; ADJ7176930
Regular
Mar 24, 2016

ROBERT GAONA vs. CAPITAL BUILDERS HARDWARE, SOUTHERN INSURANCE COMPANY, ENDURANCE REINSURANCE CORPORATION

The Workers' Compensation Appeals Board (WCAB) rescinded its prior grant of reconsideration and denied the defendant's petition for removal and reconsideration. The defendant sought to strike the Agreed Medical Evaluator's (AME) psychiatric report due to the applicant allegedly violating Labor Code section 4062.3 by sending a consulting physician's report to the AME without prior agreement. However, the WCAB found that the defendant waived this objection by later submitting both the consulting physician's and the AME's reports to an orthopedic AME for comment. Therefore, the WCAB affirmed the WCJ's denial of the defendant's petition to strike and request for costs and sanctions.

Workers' Compensation Appeals BoardPetition for ReconsiderationPetition for RemovalAgreed Medical Evaluator (AME)Joint Findings and OrdersLabor Code Section 4062.3Consulting PhysicianTainted OpinionPetition for Costs and SanctionsPetition to Strike
References
9
Case No. MISSING
Regular Panel Decision

Ames v. Group Health Inc.

Plaintiffs, including trustees John Ames and Michael Pantony of the United Welfare Fund-Welfare Division (UWF) and participant Fred Tremarcke, sued Group Health Incorporated (GHI) under ERISA and HIPAA. They alleged GHI illegally discriminated against Tremarcke by denying his health coverage after he went on disability leave, arguing it violated HIPAA's anti-discrimination provisions and breached the insurance policy. Tremarcke's employer, Classic Chevrolet, continued making health contributions on his behalf, and a 'Side Letter of Understanding' with his union attempted to maintain his 'active employee' status. The court ultimately ruled in favor of GHI, finding that Tremarcke did not meet the eligibility requirements of the UWF-GHI plan, which required working over 20 hours per week, and that the 'Side Letter' could not unilaterally alter GHI's contractual obligations. Consequently, the plaintiffs' motion for partial summary judgment was denied, and the defendant's motion for partial summary judgment was granted, dismissing the second and third causes of action.

ERISAHIPAACOBRAHealth InsuranceDisability BenefitsSummary JudgmentFiduciary DutyBreach of ContractMulti-employer FundCollective Bargaining Agreement
References
6
Case No. 533089
Regular Panel Decision
Oct 07, 2021

Matter of Barden v. General Physicians PC

Claimant, a patient services representative, sought to amend her workers' compensation claim to include left shoulder aggravation after a work-related injury to her right shoulder. The Workers' Compensation Board disallowed this request, finding that claimant failed to provide sufficient credible medical evidence to establish a causal relationship between her employment and the left shoulder condition. The Appellate Division, Third Department, affirmed the Board's decision. The court noted that the claimant's treating physician opined the left shoulder pathology was largely preexisting and unrelated to the work injury, and other medical opinions either lacked sufficient weight or were based on inaccurate information, providing no basis to disturb the Board's finding.

Workers' CompensationShoulder InjuryCausationMedical EvidencePreexisting ConditionAppellate ReviewBoard DecisionClaim AmendmentPatient Services Representative
References
10
Case No. MISSING
Regular Panel Decision
Apr 07, 1988

De Coste v. Champlain Valley Physicians Hospital

Decedent, Darwin A. De Coste, experienced chest pain and elevated blood pressure, leading him to Champlain Valley Physicians Hospital where he was seen by Dr. William Amsterlaw. Amsterlaw diagnosed reflux esophagitis despite an abnormal electrocardiogram, discharging De Coste, who subsequently suffered a fatal cardiopulmonary arrest 12 hours later. The administrator of De Coste's estate filed a wrongful death action, alleging medical malpractice and that the misdiagnosis was the proximate cause of death. A jury awarded pecuniary damages and funeral expenses, which the defendants appealed. The appellate court affirmed the verdict, finding rational support for the jury's malpractice finding and rejecting the defendants' argument to reduce the award by Social Security benefits due to the effective date of CPLR 4545 (c).

Medical MalpracticeWrongful DeathProximate CauseCollateral Source RuleCPLR 4545Jury VerdictEmergency Room CareMisdiagnosisArteriosclerosisMyocardial Infarction
References
3
Case No. ADJ186410
Regular
Jul 09, 2009

ROBIN AMES vs. FEATHER RIVER HOSPITAL, ADVENTIST HEALTH ROSEVILLE

The Workers' Compensation Appeals Board granted reconsideration of a prior award finding cumulative trauma injury for applicant Robin Ames. The defendant argued insufficient medical evidence supported this finding, primarily citing concerns with the treating physician's deposition and the admission of a supplemental report. The Board agreed that Dr. Bugna's reports and deposition did not constitute substantial evidence of cumulative trauma. Therefore, the Board rescinded the prior award and returned the case to the trial level for further proceedings and a new decision to adequately develop the record on the cumulative trauma issue. The statute of limitations finding in the related case ADJ150167 remains unchanged as it was not appealed.

Petition for ReconsiderationCumulative TraumaMedical EvidenceStatute of LimitationsPQME ReportDeposition TestimonyUnrepresented ApplicantDevelopment of RecordFindings and AwardRescinded
References
1
Case No. ADJ3207867
Regular
Apr 21, 2011

JACKIE PLASKETT vs. SAFEWAY INC.

The Workers' Compensation Appeals Board denied Safeway Inc.'s petition for reconsideration of an award for applicant Jackie Plaskett. Safeway argued a Utilization Review (UR) doctor's opinion should have overridden the Agreed Medical Examiner (AME) and primary treating physician's recommendations for aquatherapy. The Board found the UR doctor misapplied treatment guidelines and was internally inconsistent, while the AME's opinion, corroborated by the treating physician, constituted substantial evidence for the necessary treatment. The Board also noted an improperly filed reply brief.

Workers' Compensation Appeals BoardSafeway Inc.Petition for ReconsiderationReport of Workers' Compensation Administrative Law JudgeWCAB Rule 10848Utilization ReviewAgreed Medical ExaminerPrimary Treating PhysicianMedical Treatment Utilization ScheduleMTUS
References
0
Case No. ADJ7117844
Regular
Dec 05, 2011

Tommy Robison vs. CITY OF MARICOPA

The Workers' Compensation Appeals Board denied reconsideration of an award of spinal surgery for Tommy Robison. The employer argued the award was improper because the Spinal Surgery Second Opinion (SSSO) report was untimely and they had implicitly agreed to an Agreed Medical Evaluator's (AME) opinion. The Board found the employer failed to prove a timely objection to the treating physician's recommendation or timely Utilization Review at the hearing. Therefore, the treating physician's recommendation for surgery was controlling, despite the tardiness of the SSSO report, and an AME's opinion did not waive the SSSO process.

Workers' Compensation Appeals BoardPetition for ReconsiderationDeny ReconsiderationSpinal SurgeryAgreed Medical EvaluatorSecond Opinion EvaluatorTimelinessLabor CodeUtilization ReviewTreating Physician
References
5
Case No. ADJ1337418 (GOL 0091701) ADJ850408 (GOL 0091702)
Regular
May 26, 2009

DAWAYNE MOGENSEN vs. SANTA YNEZ RIVER WATER DISTRICT, ACWA/JOINT POWERS INSURANCE AUTHORITY

This case concerns an applicant's claim for reimbursement for an orthopedic bed following a stipulated award for future medical treatment for industrial neck and back injuries. The applicant's treating physician supported the need for the bed for pain relief and improved sleep. However, the Agreed Medical Evaluator (AME) opined that there was no evidence-based research to support the medical necessity of such a bed, which the majority decision followed. The dissenting opinion argues the AME's opinion was not substantial evidence as it was based on a legally incorrect premise that beds are never compensable, and that the treating physician's recommendation, coupled with the absence of a negative guideline, should have been sufficient.

Workers' Compensation Appeals BoardDawayne MogensenSanta Ynez River Water DistrictACWA/Joint Powers Insurance AuthorityADJ1337418ADJ850408Petition for ReconsiderationFuture Medical TreatmentOrthopedic BedDr. Richard Kahmann
References
10
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