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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. ADJ1700793 (SAC 0307437) ADJ3714832 (SAC 0307399)
Regular
Jun 13, 2011

JUANITA BRADLEY (Deceased) vs. COUNTY OF PLACER

This case involves a dispute over liability for a medical-legal report cost. The defendant seeks reconsideration of a prior award holding them responsible for Dr. Adelberg's $4,237.50 report. The defendant argues the judge ignored a prior order for an Agreed Medical Evaluation (AME) and that the applicant's attorney improperly proceeded with Dr. Adelberg's exam. The Board granted reconsideration, preliminarily finding it may be inequitable to place the full cost on the defendant, and intends to split the expense between the defendant and applicant's attorney. A dissenting opinion argues the defendant's own correspondence shows an ongoing dispute regarding the AME, supporting the original award of liability.

Workers' Compensation Appeals BoardReconsiderationMedical-Legal ReportAgreed Medical EvaluationQualified Medical EvaluatorJoint Findings and AwardLabor Code Section 4062(a)Stipulation and OrderEquitable PowersLien Claimant
References
1
Case No. ADJ809466 (SFO 0476863), ADJ2555852 (OAK 0329065), ADJ3801383 (OAK 0329066)
Regular
Aug 25, 2009

MINA MESIC vs. HILTON HOTELS CORPORATION (HILTON SAN FRANCISCO & TOWERS), ACE AMERICAN INSURANCE COMPANY administered by SPECIALTY RISK PLEASANTON

This case involves a dispute over an Agreed Medical Evaluator's (AME) reports on applicant Mina Mesic's industrial injuries and permanent disability apportionment. The defendant, Hilton Hotels Corporation, sought a new AME, alleging the current AME's reports were inconsistent and failed to comply with Labor Code section 4663. The Workers' Compensation Appeals Board (WCAB) dismissed the petition for reconsideration, as the challenged order was not a final determination. The WCAB also denied the petition for removal, finding no substantial prejudice or irreparable harm, as the defendant could still challenge the AME's reports at trial. The WCJ's order merely denied the request for a new AME, allowing the current AME's reports to be weighed as evidence.

Agreed Medical EvaluatorPetition for ReconsiderationPetition for RemovalApportionmentCumulative TraumaSpecific InjuryPermanent DisabilityLabor Code Section 4663Benson v. Permanente Medical GroupBrodie v. Workers' Comp. Appeals Bd.
References
13
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. ADJ7948651
Regular
May 09, 2016

Barbara Tom vs. CITY OF OAKLAND, JT2 INTEGRATED

This case involves a petition for reconsideration by the defendant, City of Oakland, following an award of permanent disability to applicant Barbara Tom. The defendant argued the Workers' Compensation Judge (WCJ) erred by not deferring to the Agreed Medical Evaluator's (AME) opinion and by not developing the record with the AME. The WCAB denied reconsideration, adopting the WCJ's report which found the AME's opinion deficient. The WCJ's report detailed how the primary treating physician's report was more persuasive and thoroughly reasoned, supporting the WCJ's findings over the AME's.

Workers' Compensation Appeals BoardPetition for ReconsiderationAgreed Medical Evaluator (AME)Primary Treating Physician (PTP)AMA GuidesPermanent Disability RatingCarpal Tunnel SyndromeSubstantial EvidenceWCJ OpinionMedical Opinion Deference
References
2
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. ADJ7845799, ADJ7931182
Regular
Jan 04, 2017

GARRY DAWSON vs. COUNTY OF LOS ANGELES

This case involves a Petition for Reconsideration by the defendant, the County of Los Angeles, challenging the admission of an Agreed Medical Examiner's (AME) report. The Workers' Compensation Appeals Board denied the petition, finding that the defendant waived any objection to the report and the communication of non-medical information to the AME. The Board specifically rejected the defendant's argument that the AME's report was improper based on *Blackledge v. Bank of America*. Therefore, the petition for reconsideration was denied.

Workers' Compensation Appeals BoardPetition for ReconsiderationAgreed Medical Examiner (AME)Disability Evaluation Unit (DEU)consultative ratingex parte communicationwaived objectionsLabor Code section 4062.3Rule 35Joint Exhibit
References
1
Case No. ADJ8314520
Regular
Aug 25, 2015

EULOGIO SANCHEZ-AGUILAR vs. PODESTA PACKING, U.S. FIRE INSURANCE COMPANY

The Workers' Compensation Appeals Board denied the applicant's petition for reconsideration regarding an award of 26% permanent disability. The applicant argued the agreed medical evaluator's (AME) report lacked substantial evidence due to alleged improper communication by the defense regarding x-ray reports. However, the Board found the applicant waived any objection by agreeing to the AME's review of the x-rays and cooperating with their creation. Furthermore, the Board agreed with the trial judge that the applicant failed to demonstrate how any purportedly unreviewed medical reports would have changed the AME's opinion.

Eulogio Sanchez-AguilarPodesta PackingU.S. Fire Insurance CompanyADJ8314520Petition for ReconsiderationFindings of FactAwardand OrdersWorkers' Compensation Administrative Law JudgeWCJ
References
1
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. ADJ422527 (FRE 0221654) ADJ7975971
Regular
Jul 09, 2012

LYDIA TORRES vs. ALBERTSON'S, INC.

This case involved an applicant alleging industrial injury to multiple body parts, including shoulders, spine, and psyche. The Administrative Law Judge (WCJ) awarded permanent disability based on apportionment of injuries as opined by an Agreed Medical Evaluator (AME). The applicant sought reconsideration, arguing the AME's apportionment opinion lacked substantial medical evidence due to insufficient reasoning. The Appeals Board denied reconsideration, finding the AME's report, when viewed in its entirety, provided a sufficient basis for apportionment based on medical expertise. One Commissioner dissented, believing the AME's report was conclusory and lacked the necessary reasoning to constitute substantial evidence for apportionment.

Workers' Compensation Appeals BoardAlbertson's Inc.Specialty Risk Services Inc.Lydia TorresFindings of Fact and Awardadmitted industrial injuryright shouldercervical spinelumbar spinepsyche
References
6
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