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

Case No. 2023 NY Slip Op 00704 [213 AD3d 1050]
Regular Panel Decision
Feb 09, 2023

Matter of Paka (Same Day Delivery Inc.--Commissioner of Labor)

The case involves Jacques Paka, a delivery driver, who applied for unemployment insurance benefits after working for Same Day Delivery Inc. The Department of Labor initially determined Paka was an employee, making Same Day liable for contributions. The Unemployment Insurance Appeal Board initially overruled this, finding Paka to be an independent contractor. However, upon reconsideration requested by the Commissioner of Labor, the Board rescinded its prior decision and sustained the Department's original determination, finding an employment relationship. The Appellate Division, Third Department, affirmed the Board's decision, rejecting Same Day's arguments against the reopening of the case and finding substantial evidence to support the Board's conclusion that Same Day exercised sufficient control over Paka to establish an employment relationship. The Court also affirmed that these findings apply to similarly situated individuals.

Unemployment InsuranceIndependent ContractorEmployment RelationshipControl TestAppellate ReviewUnemployment Insurance Appeal BoardLabor LawUnemployment BenefitsDelivery DriverSubstantial Evidence
References
11
Case No. 2017 NY Slip Op 04009 [150 AD3d 1507]
Regular Panel Decision
May 18, 2017

Matter of Jie Cao v. Five Star Travel of NY Inc.

Claimant, a bus driver, was involved in a 2007 accident and successfully applied for workers' compensation benefits, naming "Five Stars Travel Bus Inc." as his employer. Five Star Travel of NY Inc. (Five Star) did not appear after being served, leading to a WCLJ finding it liable for awards and assessments. After subsequent awards and medical treatment authorizations, a settlement was approved in 2013. In May 2015, Five Star sought to reopen the claim and challenge the prior decisions and settlement, but the Workers' Compensation Board denied the application due to untimely submission of new material evidence and the non-reviewable nature of an approved waiver agreement. The Appellate Division affirmed the Board's decision.

Workers' CompensationBus AccidentUninsured EmployerClaim ReopeningSettlement AgreementBoard ReviewAppellate DivisionTimelinessContinuing JurisdictionDue Process
References
6
Case No. MISSING
Regular Panel Decision
May 06, 1998

Nieves v. Five Boro Air Conditioning & Refrigeration Corp.

Reding Nieves, an employee of United Fire Protection, was injured while installing fire sprinklers at a New York Hall of Science site, which was subcontracted by Five Boro Air Conditioning & Refrigeration Corp. He allegedly tripped over a concealed drop light after stepping off an eight-foot ladder, sustaining an ankle injury. Nieves sued Five Boro under Labor Law § 240 (1), and Five Boro filed a third-party action against United, with the motion court initially granting Nieves summary judgment. However, the appellate court modified this order, denying summary judgment for all parties due to unresolved questions of fact surrounding the accident's cause, including conflicting testimonies. Consequently, the case requires a trial to determine liability and facts, as neither side was entitled to summary judgment.

Elevation-related riskTripping hazardSummary judgmentLabor Law § 240(1)Construction site accidentLadder fallContributory negligenceQuestions of factAppellate DivisionSubcontractor liability
References
11
Case No. ADJ2696684
Regular
Oct 17, 2008

ARNULFO MARTINEZ vs. ARGUS CONTRACTING TRAVELERS INSURANCE COMPANY

This case involves a defendant seeking reconsideration of a Workers' Compensation Appeals Board (WCAB) award for an applicant's industrial injury. The WCAB dismissed the defendant's petition because it was not filed within the statutory 20-day period, plus an additional five days for mailing, as the petition was received by the Board one day after the deadline. Mailing the petition within the deadline was insufficient; it had to be received by the WCAB by the due date to be considered timely filed.

Petition for ReconsiderationFindings and Awardindustrial cumulative injuryright wristmassage therapistpermanent disabilityfurther medical treatmenttemporary disability overpaymentLabor Code section 4061 noticepermanent and stationary
References
2
Case No. ADJ7557927
Regular
May 08, 2012

AJ SCROGGINS vs. WORLD COLOR, TRAVELERS

The Workers' Compensation Appeals Board dismissed the defendant's petitions for reconsideration and removal as untimely. The defendant filed both petitions 26 days after the Amended Findings, Award, and Order were served by mail, exceeding the 20-day statutory limit plus the additional five days for mail service. The Appeals Board also noted that even if the petitions were timely, they would have been denied on the merits based on the WCJ's report. The defendant's request to disqualify the Administrative Law Judge was also dismissed as untimely.

Workers' Compensation Appeals BoardPetition for ReconsiderationPetition for RemovalAmended Findings Award and OrderIndustrial InjuryTemporary DisabilityMedical TreatmentImpeach Applicant TestimonySub Rosa Video EvidenceExclusion of Evidence
References
4
Case No. ADJ710353 (VNO 0479290)
Regular
Jun 04, 2012

DIMAS POSADA vs. PARKWOOD LANDSCAPE & MAINTENANCE, EVEREST NATIONAL INSURANCE COMPANY

The Workers' Compensation Appeals Board (WCAB) dismissed a lien claimant's petition for reconsideration because it was filed untimely. The WCAB determined that the petition was submitted 36 days after the Order Dismissing Lien Claim was served, exceeding the statutory 20-day period plus an additional five days for mail service. As a result, the WCAB lacked jurisdiction to review the merits of the lien claimant's arguments. The lien claimant had argued the dismissal was due to a missed hearing caused by a file transfer and timely responded to a notice.

WCABADJ710353VNO 0479290Dimas PosadaParkwood Landscape & MaintenanceEverest National Insurance CompanyBel Air Surgical InstituteExpert Medical ReviewOrder Dismissing Lien ClaimNotice of Intention to Dismiss Lien
References
2
Case No. 2017 NY Slip Op 04008 [150 AD3d 1505]
Regular Panel Decision
May 18, 2017

Claim of Jie Cao v. Five Star Travel of NY Inc.

Norman Lan Chen, a bus driver, was involved in a 2007 bus accident. He successfully applied for workers' compensation benefits, and the Workers' Compensation Board found Five Star Travel of NY Inc. (his employer) to be uninsured and liable for awards. A settlement agreement was approved by the Board in October 2011. In May 2015, Five Star Travel of NY Inc. sought to reopen the claim and revisit the settlement approval, but the Board denied the application. The Appellate Division, Third Department, affirmed the Board's decision, finding that no material new evidence was presented and the application was untimely. The court also held that the Board was correct in declining to revisit the previously approved Workers' Compensation Law § 32 settlement agreement.

Workers' Compensation BoardAppealClaim ReopeningSettlement AgreementUninsured EmployerTimelinessJudicial ReviewAppellate DivisionBus Accident
References
6
Case No. MISSING
Regular Panel Decision

Local 205, Community and Social Agency Employees'union v. Day Care Council of Ny Inc.

Local 205, Community and Social Agency Employees’ Union petitioned for confirmation and enforcement of an arbitration award against the Day Care Council of New York, Inc. (DCC). The award arose from employee grievances against the now-closed Georgia-Livonia Day Care Center. The Union argued that the award should be interpreted as binding upon DCC, a multi-employer bargaining association, despite not explicitly naming DCC for relief. DCC contended it was not a party to the arbitration agreement in the collective bargaining agreement (CBA) and therefore not obligated to arbitrate disputes involving itself. The court, after reviewing the CBA's language and the parties' past conduct, found no agreement by DCC to arbitrate. It also ruled that DCC's defenses were not time-barred by either the Federal Arbitration Act or New York C.P.L.R. § 7511, as these limitations do not apply to arguments challenging the existence of an arbitration agreement itself. Consequently, the Union's petition for confirmation and enforcement of the award against DCC was denied.

Arbitration AwardCollective Bargaining AgreementGrievance ProcedureMulti-Employer AssociationAgreement to ArbitrateFederal Arbitration ActLabor Management Relations ActConfirmation of AwardEnforcement of AwardSouthern District of New York
References
25
Case No. ADJ8017939
Regular
Jan 16, 2015

RYAN SMYTHE vs. BJ'S RESTAURANTS, INC., GALLAGHER BASSETT SERVICES

This case concerns a petition for reconsideration that was dismissed by the Workers' Compensation Appeals Board. The dismissal was based on the petition being untimely filed. Labor Code section 5903 establishes a strict 20-day filing deadline after service, with an additional five days for mailing. The applicant's petition was filed on November 24, 2014, which exceeded this jurisdictional deadline after the WCJ's order was served on October 24, 2014. Therefore, the Appeals Board lacked the authority to grant the late petition.

Petition for ReconsiderationUntimelyDismissalLabor Code Section 5903Service by MailJurisdictionalAppeals BoardWCJSanctionsApplicant
References
5
Case No. ADJ7199986 ADJ7399845
Regular
Oct 03, 2011

ELMIRA SMITH vs. PACIFIC AUTISM CENTER FOR EDUCATION, TRI- STAR RISK MANAGEMENT

The applicant sought removal to challenge a finding that defendant's requested Qualified Medical Evaluator (QME) panel was properly assigned. The Appeals Board granted removal, rescinded the finding, and determined that *neither* panel was properly assigned. Both panel requests were found to be premature as they were made before the statutory 10-day period for agreeing on an Agreed Medical Evaluator had expired, plus an additional five days for mail service. This decision clarifies the timing requirements for QME panel requests following an unsuccessful attempt to select an AME.

Petition for RemovalQualified Medical Evaluator (QME)Agreed Medical Evaluator (AME)Labor Code section 4062.2(b)WCAB Rule 10507Messele v. Pitco FoodsInc.Premature RequestPanel AssignmentMedical Unit
References
2
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