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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. 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. 524606
Regular Panel Decision
Mar 29, 2018

Matter of Wolfe v. Ames Dept. Store, Inc.

Claimant Geraldine Wolfe suffered a work-related accident in April 2002, leading to established injuries to her right shoulder, neck, and upper back. Initially, a Workers' Compensation Law Judge (WCLJ) found her permanently totally disabled. However, the Workers' Compensation Board, after an impartial medical evaluation by physiatrist Paul Salerno, determined it was premature to classify her with a permanent disability. Instead, the Board found a temporary marked partial disability and directed further medical testing. The Board also concluded that claimant was not attached to the labor market as of December 16, 2013, as her employment search efforts had ceased. The Appellate Division, Third Department, affirmed the Board's decision, finding it supported by substantial evidence regarding both the disability classification and labor market attachment.

Workers' Compensation LawPermanent Total DisabilityTemporary Partial DisabilityLabor Market AttachmentImpartial Medical SpecialistMedical Impairment GuidelinesAppellate ReviewCervical Spine PainDegenerative ChangesSubstantial Evidence
References
5
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. 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. MISSING
Regular Panel Decision

La Vack v. National Shoes, Inc.

In August 1980, the plaintiff allegedly fell and was injured while working at Ames Department Store, whose shoe department was operated by J. Baker, Inc., a subsidiary of National Shoes, Inc. The property where Ames is located is owned by Irene Hendra, Arthur Rotundo, Thomas Rotundo, and Henry Rotundo (collectively, the Rotundos). Following the plaintiff's negligence action, defendants asserted cross claims against each other. Ames was granted summary judgment holding Baker liable to indemnify it, and Baker was dismissed from the plaintiff's claim due to a prior worker's compensation ruling. The Rotundos' motion for summary judgment, seeking indemnification from Baker, National, and Ames, was initially denied, leading to this appeal. The court found Ames obligated to indemnify the Rotundos based on a valid lease indemnification clause, reversing the denial of summary judgment against Ames. However, it affirmed that Baker and National were not obligated to indemnify the Rotundos, as Baker was not in privity of contract with the paramount landlord.

IndemnificationSummary JudgmentNegligenceLease AgreementGeneral Obligations LawPrivity of ContractSubleaseAppellate DecisionCross ClaimsWorker's Compensation Claim
References
4
Case No. ADJ3194339 (SFO 0437494), ADJ3391559 (SFO 0494203), ADJ748288 (SFO 0494205)
Regular
Mar 19, 2009

AMED NAGI ALI vs. ABLE MAINTENANCE COMPANY, CONTINENTAL INSURANCE COMPANY, CNA CLAIM PLUS, ALASKA NATIONAL INSURANCE COMPANY, FARMERS INSURANCE COMPANY

The Workers' Compensation Appeals Board granted reconsideration to applicant Amed Nagi Ali, who sought to reopen dismissed cases. The dismissals stemmed from applicant's failure to appear at scheduled trials, with notices of intention to dismiss issued due to this absence. However, the applicant claimed to be out of the country and did not receive mail regarding the dismissals. The Board rescinded the dismissal orders, finding an ambiguity regarding proper service, and returned the cases to the trial level for further proceedings and a new decision.

WCABPetition for ReconsiderationOrder of DismissalNotice of Intention to DismissService of ProcessOfficial Address RecordTimelinessDefective ServiceRescinded OrderReturn to Trial Level
References
2
Case No. ADJ4418855
Regular
Oct 28, 2013

JOYCE JACKSON vs. COUNTY OF LOS ANGELES/DPSS

The Workers' Compensation Appeals Board denied the defendant's Petition for Reconsideration. The defendant argued that the psychiatric AME should have apportioned disability based on the orthopedic AME's 50/50 split between industrial injury and degenerative changes. The Board found no legal precedent requiring such mandatory adherence and noted the defendant's failure to depose the psychiatric AME to challenge their apportionment. Consequently, the defendant's failure to test the psychiatric AME's opinion waived their right to complain on reconsideration.

Workers' Compensation Appeals BoardPetition for ReconsiderationAgreed Medical Evaluatorapportionmentpsychiatric disabilityorthopedic disabilityburden of proofdepositionwaiverinvited error
References
7
Case No. ADJ548925 (MON 0313676) ADJ2470845 (MON 0313677)
Regular
Jul 19, 2010

Barry Robey vs. HERTZ CORPORATION, NATIONAL UNION FIRE INSURANCE COMPANY

The Workers' Compensation Appeals Board granted reconsideration, reversing a lower decision that awarded unapportioned permanent disability. The Board found that the Agreed Medical Examiner's (AME) apportionment of 50% of the applicant's left hip disability to a non-industrial arthritic condition was substantial medical evidence, despite the WCJ's finding that the AME's reasoning was "arbitrary." The Board emphasized that AME opinions on apportionment need only be based on reasonable medical probability, not certainty, and that the AME sufficiently explained his reasoning.

Workers Compensation Appeals BoardReconsiderationFindings and AwardCumulative TraumaIndustrial InjuryApportionmentAgreed Medical ExaminerPermanent DisabilityNon-industrial CausationLabor Code Section 4663
References
0
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