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

Case No. ADJ7813892
Regular
Oct 26, 2018

LEOBARDO GIJON (Deceased), CELEDONIA MARTINEZ (Widow), ESAU GIJON vs. ROBERT WAYNE ROBINSON, DIRECTOR OF INDUSTRIAL RELATIONS AS ADMINISTRATOR FOR THE UNINSURED EMPLOYERS BENEFITS TRUST FUND

This case concerns the fatal injury of Leobardo Gijon, who was run over by a backhoe on the property of uninsured employer Robert Wayne Robinson. The Workers' Compensation Appeals Board (WCAB) is reconsidering its prior decision that Gijon's death arose out of and occurred in the course of his employment (AOE/COE). The defendant argues the WCAB failed to adequately address the AOE/COE issue, contending Gijon was operating the backhoe for personal reasons. However, the WCAB found substantial evidence that Gijon's operation of the backhoe was authorized by the employer and reasonably contemplated by the employment, especially as it was to be considered payment for ongoing work. Therefore, the petition for reconsideration was denied.

AOE/COEUninsured Employers Benefits Trust FundDeceased employeeFatal injuryBackhoe accidentWelding workCompensable injuryCourse of employmentDual purpose doctrineZone of danger
References
22
Case No. MISSING
Regular Panel Decision
Jun 08, 2009

Benevento v. City of Buffalo

Plaintiff, a construction worker, sought damages for injuries sustained when he was struck by a backhoe bucket during an excavation project. He initiated a Labor Law and common-law negligence action. The Supreme Court partially denied the defendants' motion for summary judgment regarding the Labor Law § 241 (6) claim, which was based on a violation of 12 NYCRR 23-9.5 (c). The core dispute revolved around whether the backhoe was considered "in use" at the time of the incident, impacting the applicability of the safety regulation requiring the bucket to rest on the ground under certain conditions. The appellate court affirmed the lower court's decision, finding a material issue of fact existed as to whether the backhoe was "in use," thereby precluding summary judgment and allowing the claim to proceed to trial.

Labor LawNegligenceSummary JudgmentConstruction AccidentBackhoe InjuryWorker SafetyAppellate Decision12 NYCRR 23-9.5 (c)Material Issue of FactExcavation Work
References
2
Case No. ADJ6754663
Regular
Jun 21, 2010

RUBEN CASTILLO vs. J. JOHNSON & COMPANY, INC., STATE COMPENSATION INSURANCE FUND

This case concerns an applicant injured within six months of employment, raising a claim for psychiatric injury. Labor Code Section 3208.3(d) generally bars such claims unless the injury results from a "sudden and extraordinary" employment condition. The Appeals Board, in a majority decision, found the applicant's injury from a backhoe bucket was not extraordinary, thus reversing the WCJ's finding and barring the psychiatric claim. A dissenting opinion argued that being struck by a backhoe bucket is not a regular or routine incident and should qualify as a sudden and extraordinary event.

Labor Code Section 3208.3(d)sudden and extraordinary employment conditionpsychiatric injurysix-month employment rulereconsiderationFindings and OrderWCJReport and Recommendationbackhoe bucketworkplace violence
References
4
Case No. MISSING
Regular Panel Decision
Dec 12, 2002

Claim of Cacciatore v. AJ Hunter Construction Co.

The claimant, a part owner and president of AJ Hunter Construction Company and Hunter Home Construction Corporation, was injured while operating a backhoe at a construction site owned by Hunter Home. He sought workers' compensation benefits under AJ Hunter's insurance policy, which primarily covered cabinet installation and sales. Both a Workers’ Compensation Law Judge and the Workers’ Compensation Board disallowed the claim, finding that the claimant was not acting as an employee of either corporation and that the injury was not covered by AJ Hunter's policy. The appellate court affirmed this decision, concluding that the backhoe operation was unrelated to AJ Hunter's business as described in the insurance application, thus the policy did not provide coverage for the injury.

Workers' CompensationInsurance CoverageEmployment StatusBackhoe AccidentConstruction IndustryBusiness OwnershipPolicy ExclusionsAppellate ReviewNew York LawSuffolk County
References
3
Case No. MISSING
Regular Panel Decision

Vaniglia v. Northgate Homes, Northgate Properties, Inc.

Plaintiff Robert Vaniglia sustained serious injuries at a Richmond County construction site on March 30, 1977, due to a backhoe entangling with an electrical conduit. Northgate Homes, the site owner and general contractor, and third-party defendant United Associates Construction & Excavating Corp., which provided the backhoe operator, were found liable. A jury initially awarded Vaniglia $1,500,000 in damages. The appellate court affirmed the findings of liability but deemed the damages excessive. It conditionally reversed the damages award, ordering a new trial unless Vaniglia agreed to reduce the sum to $1,000,000. The judgment against United Associates was affirmed.

Personal InjuryConstruction Site AccidentNegligenceLabor Law ViolationApportionment of FaultDamages AssessmentExcessive VerdictConditional ReversalNew Trial on DamagesThird-Party Liability
References
4
Case No. MISSING
Regular Panel Decision

Webber v. City of Dunkirk

Justices Lawton and Balio dissent in part from a ruling, agreeing that 12 NYCRR 23-4.2 (k) and 23-9.2 (b) lack sufficient specific standards for a Labor Law § 241 (6) cause of action. However, they disagree with the application of 12 NYCRR 23-9.5 (c), arguing it does not apply as the backhoe was in use during the accident, and any violation was not a proximate cause. They reject the notion that the backhoe was not in use while workers raked blacktop, as the operator remained inside with the engine running. Furthermore, they dismiss the argument that lowering the bucket would have alerted workers to forward movement, deeming it speculative and not aligned with the regulation's purpose. Thus, they would grant summary judgment to dismiss the Labor Law § 241 (6) claim.

Labor LawBackhoe AccidentSummary JudgmentProximate CauseConstruction SafetyAppellate ReviewDissenting OpinionWorkplace Safety RegulationsNew York Labor LawIndustrial Code
References
0
Case No. MISSING
Regular Panel Decision
May 28, 1997

Melo v. Consolidated Edison Co.

This case concerns an appeal regarding the application of Labor Law § 240 (1) to a construction accident. The plaintiff was injured when a steel plate, attached to a backhoe and being hoisted, became disengaged and fell, striking the plaintiff who was at ground level. The Supreme Court granted the defendant's cross-motion for summary judgment, dismissing the Labor Law § 240 (1) claim, a decision which was subsequently affirmed by the appellate court. The majority affirmed on the grounds that Labor Law § 240 (1) applies only to elevation-related hazards where the object falls from a significantly higher elevation than the work site, not merely due to gravity at ground level. The dissenting opinion argued that the use of an improvised hoist (backhoe and chain) and the elevation of even one end of the plate above the plaintiff's foot constituted an elevation-related hazard intended to be covered by the statute.

Labor Lawelevation differentialconstruction accidentfalling objectbackhoehoistslingstrict liabilitysummary judgmentappellate review
References
9
Case No. MISSING
Regular Panel Decision

Fernades v. Skanska USA Building Inc.

Plaintiff, an employee of Ruttura & Sons Construction Co., was injured while assisting in the removal of concrete forms at JFK Airport, where Skanska USA Building Inc. was the 'Design/Builder.' The accident occurred when a wrench, used to remove metal rods with a backhoe, slipped, causing the backhoe bucket to strike the plaintiff. Plaintiff filed a complaint alleging violations of Labor Law § 240 (1), § 241 (6), and § 200. The court reviewed conflicting accounts of the incident and analyzed the applicability of Labor Law § 240 (1), which addresses elevation-related and gravity-related hazards. Citing precedent, the court determined that the injury, whether by direct impact from the bucket or by the plaintiff's momentum due to the hoisting mechanism's failure, fell within the scope of § 240 (1). Consequently, the court granted plaintiff summary judgment on liability for the Labor Law § 240 (1) claim.

Labor Law § 240(1)Gravity-related hazardsHoisting mechanismSummary judgmentConstruction accidentWorkplace injuryBackhoe accidentFalling objectElevation-related hazardsWorker safety
References
9
Case No. 2008 NY Slip Op 51393(H)
Regular Panel Decision
Jun 30, 2008

Fassett v. Wegmans Food Markets, Inc.

Plaintiff, a heavy equipment operator employed by Fahs Rolston Paving Corporation, sustained an ankle injury after slipping on mud while exiting a backhoe at a Wegmans construction site. He filed a lawsuit against Wegmans Food Markets, Inc. (site owner) and Hunt Engineers, Architects and Land Surveyors, PC. (site monitor), alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). The Supreme Court initially granted summary judgment to Wegmans and partially to Hunt on the Labor Law § 241(6) claim. On cross appeals, the Appellate Division affirmed the dismissal of negligence and Labor Law § 200 claims against Wegmans, while establishing a triable issue of fact for Hunt on these same claims. Crucially, the court reversed the summary judgment concerning the Labor Law § 241(6) claim for both defendants, ruling that the backhoe's battery cover constituted a 'passageway' and accumulated mud a 'foreign substance' under 12 NYCRR 23-1.7 (d).

Construction site accidentSlip and fallLabor Law § 200Labor Law § 241 (6)Common-law negligenceSummary judgmentAppellate reviewDuty to provide safe workplaceForeign substancePassageway
References
31
Case No. MISSING
Regular Panel Decision
Jul 02, 2012

Mohamed v. City of Watervliet

Plaintiff Sharif M. Mohamed sustained severe injuries when he was struck by a backhoe bucket while working for Green Island Contracting, LLC, on a highway reconstruction project. He and his wife subsequently filed a lawsuit against the City of Watervliet and Clough Harbour & Associates, LLP, alleging violations of Labor Law §§ 240 (1), 241 (6), and 200, alongside common-law negligence. The Supreme Court denied the plaintiffs' motion for summary judgment but partially granted the defendants' cross-motion, dismissing the Labor Law § 240 (1) claim and portions of the § 241 (6) claim. On cross-appeals, the appellate court affirmed the Supreme Court's order, concluding that the accident was not a 'falling object' case under Labor Law § 240 (1) as the injury stemmed from the backhoe's mechanical operation, possibly due to operator error, rather than the direct force of gravity. The court also upheld the dismissal of certain § 241 (6) claims based on specific regulations and found that factual questions precluded summary judgment on the Labor Law § 200 claim.

Labor LawConstruction AccidentBackhoe InjuryFalling Object DoctrineElevation-Related RiskSummary JudgmentAppellate ReviewProximate CauseOperator ErrorWorkplace Safety Regulations
References
18
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