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

Case No. 2015 NY Slip Op 09604
Regular Panel Decision
Dec 29, 2015

Maggio v. 24 West 57 PFF, LLC

Plaintiff Joseph Maggio, a drywall installer, was injured after falling from a scaffold staircase at a premises owned by 24 West 57 APF, LLC and leased by Ana Tzarev New York, LLC (ATNY). The scaffold, constructed by Atlantic Hoist & Scaffolding, LLC, had a modified staircase with plywood covering some steps, lacking anti-slip protection and having an irregular rise. Plaintiff attributed his fall to these conditions and the presence of construction debris. The Supreme Court initially denied summary judgment motions from defendants 24 West and ATNY, citing outstanding discovery, and later denied renewed motions. On appeal, the Appellate Division found 24 West and ATNY justified in bringing the second motion but denied their request for summary judgment on negligence and Labor Law § 200 claims due to factual questions regarding notice of the dangerous condition. The court also denied plaintiff's untimely cross-motion for partial summary judgment on his Labor Law § 240 (1) claim. The Appellate Division modified the lower court's order, granting ATNY conditional contractual indemnification against R&R, and otherwise affirmed the decision.

Summary JudgmentLabor Law § 200Labor Law § 240 (1)Common-Law NegligenceContractual IndemnificationCommon-Law IndemnificationScaffold AccidentConstruction Site InjuryPremises LiabilityAppellate Procedure
References
12
Case No. CV-24-0199
Regular Panel Decision
Mar 27, 2025

In the Matter of the Claim of Racquel C. Olivier

Claimant Racquel C. Olivier, a correction officer, sustained work-related injuries in April 2022. The Workers' Compensation Law Judge (WCLJ) established the claim, awarded temporary total disability benefits, and approved counsel fees for claimant's attorney as a lien against the employer's reimbursement award. The employer's carrier challenged the counsel fees, arguing they were improperly placed as a lien against reimbursement without an increase in compensation under Workers' Compensation Law § 24 (2) (b). The Workers' Compensation Board affirmed, holding that the WCLJ's initial awards constituted an increase in compensation. The Appellate Division affirmed the Board's decision, agreeing that the initial awards were an increase under WCL § 24 (2) (b), thus justifying the counsel fees as a lien against the carrier's reimbursement.

Workers' Compensation BoardCounsel FeesLienEmployer ReimbursementTemporary Total DisabilityWorkers' Compensation Law § 24Appellate ReviewProcedural HistoryStatutory InterpretationAdministrative Law
References
5
Case No. 2017 NY Slip Op 04412
Regular Panel Decision
Jun 07, 2017

Aprile-Sci v. St. Raymond of Penyafort R.C. Church

Kathleen Aprile-Sci, a volunteer Eucharistic Minister, allegedly tripped and fell at St. Raymond of Penyafort R.C. Church. The Workers' Compensation Board (WCB) determined her injury was work-related and she was entitled to benefits, a decision she did not object to. Subsequently, Aprile-Sci and her husband commenced a personal injury action against the church. The church moved for summary judgment based on the exclusivity provisions of the Workers' Compensation Law. The Supreme Court denied the motion, but the Appellate Division reversed, holding that the WCB's final and conclusive determination barred a collateral attack in a plenary action.

Workers' Compensation LawExclusivity DoctrineSummary JudgmentAppellate ReviewVolunteer StatusPersonal Injury ClaimWCB DeterminationCollateral AttackTriable Issues of FactDiocese Insurance
References
13
Case No. ADJ8987075
Regular
Nov 21, 2014

MAGALI PENA vs. DEL MAR SEAFOODS, STATE NATIONAL INSURANCE COMPANY

The Workers' Compensation Appeals Board granted the defendant's petition for reconsideration regarding the applicant's temporary disability period. The Board amended the prior finding, establishing the temporary disability for the applicant's knee injury from June 19, 2013, through April 17, 2014. This amendment adjusted the end date of temporary disability from April 27, 2014, to April 17, 2014. The Board otherwise affirmed the original Amended Findings and Award.

Petition for ReconsiderationFindings and AwardTemporary DisabilityIndustrial InjuryWorkers' Compensation Appeals BoardWCJAmended Findings and AwardPermanent and StationaryMedical OpinionReport and Recommendation
References
0
Case No. ADJ8838881
Regular
Jul 11, 2014

ALEXANDER ENGLISH vs. DALLAS MAVERICKS, ZENITH INSURANCE COMPANY

This case involves a petition for removal filed by the defendants, Dallas Mavericks and Zenith Insurance Company. The Workers' Compensation Appeals Board dismissed the petition because it was filed on June 18, 2014, which was untimely. The original decision was issued on April 8, 2014, and the petitioner failed to file within the required 20-day period for personal service. The Board clarified that the 20-day deadline, not 25 days, applied, making the petition due by April 28, 2014.

Petition for RemovalUntimely FilingPersonal Service20-day DeadlineWCJ ReportStrom v. Workers' Comp. Appeals Bd.ADJ8838881Oakland District OfficeWorkers' Compensation Appeals BoardDALLAS MAVERICKS
References
1
Case No. 2021 NY Slip Op 00744 [191 AD3d 1363]
Regular Panel Decision
Feb 05, 2021

Lemiszko v. Mosovich 2014 Family Trust

Plaintiff Troy C. Lemiszko commenced an action seeking damages for injuries sustained after falling from a ladder on premises owned by Mosovich 2014 Family Trust. Defendant AAA Contracting, LLC appealed an order denying its pre-answer motion to dismiss Labor Law claims and the Trust's cross-claim for contractual indemnification. The Appellate Division affirmed the lower court's order, rejecting AAA Contracting, LLC's collateral estoppel argument, finding that a prior workers' compensation determination did not preclude plaintiff's Labor Law recovery. The court also upheld the denial of dismissal for the contractual indemnification cross-claim due to insufficient documentary evidence.

Collateral EstoppelLabor Law ClaimsContractual IndemnificationWorkers' Compensation BoardLadder FallPersonal InjuryAppellate ReviewMotion to DismissGeneral Contractor LiabilityUninsured Employer
References
13
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. MISSING
Regular Panel Decision

Majekodunmi v. Majekodunmi

The parties, married in Nigeria in 1971, commenced divorce proceedings in August 2000. Plaintiff was awarded maintenance of $420 per month until February 2004 and $2,000 in counsel fees, while defendant's request for child support for their daughter Adetoro was denied. On appeal, the court affirmed the maintenance duration and counsel fees, citing the parties' frugal pre-divorce lifestyle and plaintiff's spending habits. However, the court found an abuse of discretion in denying child support, directing plaintiff to pay $32.24 weekly, emphasizing that obligations are based on ability to provide support, not just current financial condition.

DivorceMaintenanceChild SupportCounsel FeesAppellate DecisionMarital Standard of LivingEarning CapacityFinancial ConditionSpousal SupportSchenectady County
References
7
Case No. ADJ6692231
Regular
Nov 23, 2016

DONALD BARNARD vs. SCHELLINGER CONSTRUCTION COMPANY, LINCOLN GENERAL INSURANCE COMPANY IN LIQUIDATION

The Appeals Board granted reconsideration to clarify the commencement date of permanent disability indemnity payments. Despite a previous finding incorporating a DEU commutation suggesting an April 15, 2014 start date, the Board ruled that Labor Code section 4650 dictates entitlement begins the day after temporary disability ends. Therefore, applicant is entitled to permanent disability payments starting October 2, 2010, with a 15% increase commencing sixty days after April 15, 2014. The matter is returned for further proceedings to adjust benefits and attorney fees accordingly.

Workers' Compensation Appeals BoardPetition for ReconsiderationFindings and OrderWCJDEU commutationpermanent disabilitycommencement dateretroactive benefitsLabor Code § 4650Brower v. David Jones Construction
References
1
Case No. ADJ1919201
Regular
May 08, 2015

KIN WAH KUNG vs. SAN FRANCISCO COMMUNITY COLLEGE DISTRICT

The applicant, Kin Wah Kung, filed a petition for removal regarding an order that set a hearing for April 24, 2014. Because that hearing date has passed, the petition is now moot. The Workers' Compensation Appeals Board therefore dismissed the petition for removal as it no longer presented a live controversy.

Petition for RemovalOrder Dismissing PetitionMoot PetitionWorkers' Compensation Appeals BoardSan Francisco Community College DistrictADJ1919201SFO 0489567Order Setting HearingApplicantDefendant
References
0
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