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

Case No. 2021 NY Slip Op 00986
Regular Panel Decision
Feb 16, 2021

Amazing Home Care Servs., LLC v. Applied Underwriters Captive Risk Assur. Co. Inc.

This case involves an appeal concerning a dispute between healthcare entities (plaintiffs) and insurance entities (Applied defendants) over a workers' compensation insurance policy, the Reissuance Participation Agreement (RPA). Plaintiffs alleged a fraudulent scheme where the RPA was not properly approved by the New York State Department of Financial Services. The RPA contained a forum selection clause mandating litigation in Nebraska. The Supreme Court denied the Applied defendants' motion to dismiss, but the Appellate Division modified the order, dismissing the second amended complaint without prejudice to re-filing in Nebraska. The Appellate Division enforced the forum selection clause, finding plaintiffs failed to demonstrate it was unreasonable, unjust, or fraudulently procured, and deemed AUCRA a necessary and indispensable party.

Forum Selection ClauseWorkers' Compensation InsuranceFraudulent SchemeAppellate ReviewJurisdictionNecessary PartyIndispensable PartyChoice of Forum ActNew York LawContract Enforcement
References
17
Case No. ADJ4055046 (VNO 0490494)
Regular
Feb 07, 2011

JAIME AGABO vs. HI-TECH IRON WORKS, APPLIED RISK OMAHA

This case involves an applicant seeking additional compensation for serious and willful misconduct by his employer, Hi-Tech Iron Works, following an industrial injury. The employer's petition for reconsideration of the administrative law judge's (WCJ) award was denied. The Board found substantial evidence supported the WCJ's determination that the employer knew an unsafe rope was being used for heavy lifting and directed employees to proceed despite the probable risk of serious injury. The employer's arguments regarding a Cal-OSHA report and the presence of management were rejected based on credibility findings and the evidence presented.

Serious and willful misconductLabor Code Section 4553inadequate equipmentpulley and ropeunsafe work environmentmanaging representativeknowledge of dangerdisregard of warningemployer liabilityworkers' compensation
References
8
Case No. ADJ10195356
Regular
Dec 05, 2010

MICHAEL PEARSALL vs. CSJ SAIZ CONSTRUCTION, APPLIED RISK SERVICES

This Workers' Compensation Appeals Board case, ADJ10195356, involves Michael Pearsall as the applicant and CSJ Saiz Construction and Applied Risk Services as defendants. The Board issued an order dismissing the applicant's Petition for Removal. This dismissal is due to the petitioner voluntarily withdrawing the petition that sought removal of a prior decision.

Petition for RemovalDismissalApplicantDefendantCSJ Saiz ConstructionApplied Risk ServicesMichael PearsallADJ10195356Fresno District OfficeAugust 16 2016
References
0
Case No. MISSING
Regular Panel Decision

New York State Workers' Compensation Board v. Consolidated Risk Services, Inc.

The New York State Workers’ Compensation Board, acting as a governmental agency and successor in interest to several insolvent workers' compensation self-insured trusts, commenced an action against a third-party administrator (Consolidated Risk Services, Inc.), its employees, related corporate entities, insurance brokers (including Hickey-Finn & Co., Inc.), former trustees of one of the trusts (RITNY), and an actuarial firm (Regnier Consulting Group, Inc.). The plaintiff alleged misconduct and malfeasance by the defendants led to trust insolvencies and sought to recover accumulated deficits. The case involves cross appeals challenging the Supreme Court’s partial dismissal of the complaint, specifically concerning the timeliness of claims for breach of fiduciary duty, fraud, fraudulent inducement, breach of contract, and common-law indemnification, applying the repudiation and discovery rules for statute of limitations. The Appellate Division modified the Supreme Court's order by dismissing specific claims against Hickey-Finn & Co., Inc., broadening the temporal scope of breach of fiduciary duty claims against other defendants, and reinstating common-law indemnification claims against several RITNY trustees, affirming the order as modified and remitting the case.

Workers' CompensationBreach of Fiduciary DutyFraudFraudulent InducementBreach of ContractCommon-Law IndemnificationStatute of LimitationsRepudiation RuleDiscovery RuleTrust Insolvency
References
27
Case No. ADJ6923711
Regular
May 02, 2013

OSCAR VIZCARRA vs. APPLIED RISK SERVICES

The Workers' Compensation Appeals Board (WCAB) dismissed Oscar Vizcarra's petition for reconsideration as untimely. The petition was filed on March 28, 2013, which was more than twenty days after the WCJ's decision was personally served on February 28, 2013. Because the decision was personally served, no mailing extension applied. The WCAB correctly applied Labor Code section 5903, noting that filing a petition for reconsideration outside the jurisdictional time limit mandates dismissal.

Workers' Compensation Appeals BoardPetition for ReconsiderationUntimely FilingLabor Code Section 5903Jurisdictional Time LimitPersonally ServedMailing ExtensionCode of Civil Procedure Section 1013WCAB Rule 10507Date of Receipt
References
7
Case No. ADJ7987695 ADJ7987686
Regular
May 08, 2014

VANESSA BRUCE vs. VALLEY HEALTH SYSTEM/PHYSICIANS FOR HEALTHY HOSPITALS; CRUM & FORSTER AND TRISTAR RISK MANAGEMENT

The applicant, a licensed vocational nurse, sought workers' compensation for injuries sustained when she fell asleep driving home after working three extra hours off the clock due to a coworker's issue. The Workers' Compensation Appeals Board (WCAB) denied her petition for reconsideration. The WCAB found the injury did not arise out of or occur in the course of employment, as the "going and coming rule" applied and neither the "special mission" nor "special risk" exceptions were met. The applicant's decision to stay late was voluntary, not at the employer's request, and falling asleep while driving is a common risk, not a special employment-related hazard.

Workers' Compensation Appeals BoardLicensed Vocational NurseSpecific InjuryNeck InjuryBack InjuryHeadachesCumulative InjurySleep DisorderGoing and Coming RuleSpecial Mission Exception
References
17
Case No. ADJ1700987
Regular
Nov 03, 2010

RAY WRIGHT vs. MITCHELL CONCRETE, APPLIED RISK OMAHA

The defendant sought removal of a WCJ's finding that an orthopedic QME was not authorized to select an internal medicine QME, arguing Administrative Director Rule 32 permitted it. The Appeals Board denied the petition for removal. Removal is an extraordinary remedy granted only upon a showing of substantial prejudice or irreparable harm, which the defendant failed to demonstrate. The Board adopted the WCJ's reasoning and concluded reconsideration would be an adequate remedy.

QME panelAMEAdministrative Director Rule 32AD Rule 31.7petition for removalsubstantial prejudiceirreparable harmreconsiderationWorkers' Compensation Appeals BoardWCJ
References
2
Case No. ADJ10369716, ADJ9273910
Regular
Sep 29, 2017

FRANCISCO JIMENEZ vs. AG EXPRESS TRANSPORTATION, APPLIED RISK OMAHA

This case concerns the division of a $24,000 attorney's fee between two attorneys representing the applicant. The Workers' Compensation Appeals Board denied the petition for reconsideration filed by attorney Alan Tajer, who argued for a larger share of the fee. The Board found that the WCJ did not abuse her discretion in awarding $18,000 to Ronald Ehrman and $6,000 to Tajer, considering Ehrman's role in initiating the case, negotiating the settlement, and his representation for a longer period. The Board also found that the alleged error in failing to rule on the admissibility of an exhibit was harmless.

WCABAttorney Fee SplitPetition for ReconsiderationFindings and OrdersCompromise and ReleaseAgreed Medical ExaminerMedical Provider NetworkPetition for VenueCumulative TraumaSpecific Injury
References
2
Case No. ADJ6559495
Regular
Sep 07, 2010

MANUEL BARAJAS vs. F&H COLD STORAGE, APPLIED RISK OMAHA

This case concerns a defendant's petition for reconsideration of an award allowing a chiropractor's lien. The defendant argued the lien should not be allowed as they notified the applicant of their Medical Provider Network (MPN). However, the Board denied reconsideration, finding the defendant failed to seek reconsideration of a prior "hold harmless" provision in the Compromise and Release order. This prior order bound the defendant to pay liens, regardless of MPN status, because they did not challenge it within the statutory period. Therefore, the Board upheld the lien award based on the finality of the prior order.

MPNLienPetition for ReconsiderationFindings and AwardMedical Provider NetworkLabor Code section 4903.1(a)Report and RecommendationCompromise and ReleaseWCJIndustrial Injury
References
5
Case No. ADJ1383173, ADJ1689839
Regular
May 29, 2013

Gonzalo Rodriguez vs. Potential Industries, Chartis Costa Mesa, Applied Risk Omaha

The Workers' Compensation Appeals Board denied reconsideration of a finding that Gonzalo Rodriguez did not sustain industrial cumulative injuries. The applicant's testimony was deemed not credible due to inconsistencies and his admission of Alzheimer's disease. Furthermore, the medical report was found to lack substantial evidence, as it did not adequately address pre-existing conditions or definitively link the applicant's complaints to his employment. Finally, the Board found no basis to presume compensability due to late denials.

Workers' Compensation Appeals BoardReconsiderationIndustrial InjuryCumulative InjuryApplicant CredibilityMedical EvidenceAlzheimer's DiseasePrior Medical HistoryRheumatologistPresumption of Compensability
References
0
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