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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 04626 [197 AD3d 518]
Regular Panel Decision
Aug 04, 2021

D. S. v. Positive Behavior Support Consulting & Psychological Resources, P.C.

This case involves an appeal by the Port Jefferson School District from an order denying its motion to dismiss a personal injury complaint. The infant plaintiff, a special education student, was allegedly injured by a therapist, Vito Silecchia, during a behavioral therapy session. The plaintiffs sued the School District, among others, alleging Silecchia was an employee or agent. The District contended Silecchia was an independent contractor retained through Positive Behavior Support Consulting and Psychological Resources, P.C. The Appellate Division affirmed the Supreme Court's denial of the dismissal motion, stating that the complaint adequately stated a cause of action and that documentary evidence did not conclusively establish an independent contractor relationship, given provisions in the agreement suggesting the District maintained some control over the services.

Personal InjuryRespondeat SuperiorIndependent ContractorMotion to DismissAppellate ReviewVicarious LiabilitySchool District LiabilitySpecial EducationTherapist NegligenceCPLR 3211 (a) (1)
References
25
Case No. MISSING
Regular Panel Decision

Greece Support Service Employees Ass'n v. Public Employment Relations Board

This case concerns an appeal regarding the proper application of Civil Service Law § 209-a (1) (e) to salary provisions in an expired collective bargaining agreement between an unnamed petitioner and the Greece Central School District. The agreement, from July 1992 to June 1995, included cost-of-living adjustments for salary schedules during its term. After the agreement expired, the District continued existing salary schedules but ceased further cost-of-living adjustments for 1995-1996, prompting the petitioner to file an improper practice charge. The Public Employment Relations Board (PERB) reversed an Administrative Law Judge's decision, concluding that the agreement did not mandate continued cost-of-living adjustments post-expiration. The Supreme Court dismissed the petitioner's subsequent CPLR article 78 petition seeking annulment of PERB's determination. The Appellate Division affirmed the Supreme Court's judgment, deferring to PERB's expertise and finding its interpretation that the adjustments were limited to the agreement's term to be reasonable and legally permissible.

Collective Bargaining AgreementSalary AdjustmentCost-of-Living AdjustmentPublic EmployerImproper Practice ChargeCivil Service LawPublic Employment Relations BoardJudicial ReviewCPLR Article 78Statutory Interpretation
References
6
Case No. MISSING
Regular Panel Decision

Claim of Bruzzese v. Guardsman Elevator Co.

In 1994, the claimant sustained head, neck, and back injuries at work, leading to an award for permanent partial disability, which included a wage expectancy adjustment under Workers’ Compensation Law § 14 (5). Following back surgery in 1998, the case was reopened, and the claimant was found to be temporarily totally disabled. Benefits for this temporary total disability were calculated based on the claimant's average weekly wage at the time of injury, without applying the wage expectancy adjustment. The claimant appealed, arguing that since the permanent partial disability preceded the temporary total disability, the wage expectancy adjustment should also apply to the latter period. The court disagreed, affirming the Workers’ Compensation Board's decision, citing established case law that Workers’ Compensation Law § 14 (5) is applicable only to awards for permanent partial disability and not temporary disability.

Wage expectancyTemporary total disabilityPermanent partial disabilityWorkers' Compensation benefitsBack injuryAppellate reviewDisability calculationWorkers' Compensation BoardAverage weekly wage
References
1
Case No. ADJ312652 (STK 0204453)
Regular
Nov 14, 2008

AMADOR CISNEROS vs. CBC FRAMING and VIRGINIA SURETY, adjusted by CAMBRIDGE INTEGRATED RESOURCES

This case involves a dispute over a Workers' Compensation Appeals Board (WCAB) decision to set aside a prior order and require the defendant to produce the claims adjuster for testimony. The WCAB denied the defendant's petition for removal, finding no abuse of discretion by the judge who properly used WCAB Rule § 10859 to rescind the prior order and allow for further proceedings. The defendant's arguments regarding the applicant's failure to produce the adjuster at trial were deemed premature as no order compelling appearance had been issued.

WCABPetition for RemovalOrder Setting Aside FindingsWCJ DiscretionWCAB Rule 10859Claims AdjusterMandatory Settlement ConferencePetition for ReconsiderationWCAB Rule 10843(b)AOE/COE
References
1
Case No. ADJ9103955
Regular
Aug 25, 2014

EMMANUEL BRISENO vs. CALTRANS, Permissibly Self-Insured, Adjusted By STATE COMPENSATION INSURANCE FUND

This case concerns a workers' compensation appeal where the defendant, Caltrans, sought reconsideration of an award of temporary disability benefits. Caltrans argued the award should credit benefits already paid by the Employment Development Department (EDD) to prevent double recovery. The Appeals Board granted reconsideration, agreeing that the award needed adjustment for the EDD's potential lien. Consequently, the Board amended the award to require the parties to adjust the benefit amount, taking into account the EDD's potential lien interest.

Workers' Compensation Appeals BoardADJ9103955Emmanuel BrisenoCALTRANSPermissibly Self-InsuredState Compensation Insurance FundTemporary Disability IndemnityEmployment Development Department (EDD)EDD LienDouble Recovery
References
0
Case No. ADJ7978937
Regular
Aug 26, 2014

KATHERINE JAMES vs. STATE OF CALIFORNIA, CSP KINGS COUNTY AT CORCORAN, Legally Uninsured; STATE COMPENSATION INSURANCE FUND/STATE CONTRACT SERVICES, Adjusting Agency

The Appeals Board granted reconsideration and amended the original award, admitting defendant's Exhibit E and adjusting the temporary disability indemnity rate. While affirming the finding of a psychiatric injury, the Board rescinded all penalties and sanctions previously awarded. Defendant's assertion of a good faith personnel action defense was deemed reasonable, thus precluding penalties for delayed payment. Temporary disability amounts are to be adjusted by the parties, with jurisdiction reserved for future disputes.

Workers' Compensation Appeals BoardReconsiderationPsychiatric InjuryGastrointestinal SystemDepressionAnxietyPanic AttacksLoss of AppetiteTemporary DisabilityPenalties
References
14
Case No. MISSING
Regular Panel Decision

In re the Claim of Ford

The claimant appealed decisions from the Unemployment Insurance Appeal Board denying Trade Adjustment Assistance (TAA) benefits. The initial February 8, 1999 decision was superseded by a May 21, 2001 decision, which the court reviewed. The court found that the Board's denial of further training was reasonable because the claimant had already received suitable paralegal training under Labor Law § 599. The claimant left her paralegal employment to continue law school, rather than finding permanent work in the field for which she was already trained. Consequently, the court affirmed the May 21, 2001 decision and dismissed the appeal from the April 5, 1999 decision as moot.

Trade Adjustment AssistanceTAA BenefitsUnemployment InsuranceEligibilityVocational TrainingParalegal TrainingAdministrative LawAppellate ReviewStatutory InterpretationFederal Trade Act
References
5
Case No. MISSING
Regular Panel Decision
Mar 28, 2014

Gallen v. County of Rockland

This case concerns an appeal by defendants Jay L. Lombard and Brain Behavior Center-Rockland from the denial of their motion for summary judgment in a medical malpractice and wrongful death action. The plaintiff's decedent, after a suicide attempt, was discharged from Valley Hospital with a safety contract. The same day, he was seen by defendant Lombard, a neurologist, who performed a suicide assessment, prescribed medication, and concluded there was no immediate risk, but the decedent committed suicide a week later. The Supreme Court denied the defendants' motion for summary judgment, and the appellate court affirmed, finding a triable issue of fact regarding whether Lombard departed from good medical practice by failing to obtain prior records and conducting an inadequate suicide assessment.

Medical MalpracticeWrongful DeathSuicide AssessmentNeurologist LiabilitySummary JudgmentAppellate ReviewStandard of CareProximate CausePatient DischargePsychiatric Treatment
References
6
Case No. MISSING
Regular Panel Decision

Boyd v. Coughlin

Petitioners, inmates at Clinton Correctional Facility, challenged a determination by the facility's Adjustment Committee via a CPLR article 78 proceeding after refusing Sunday labor. They faced misbehavior reports, a hearing, and subsequent punishments including job suspension and keeplock. During the hearing, they were denied rights to present documentary evidence, call witnesses, or have legal representation. The petitioners contended they were entitled to more extensive due process, citing precedent, but the Supreme Court's judgment, which dismissed their application, was affirmed on appeal. The appellate court referenced a prior ruling which deemed similar inmate confinement as nonpunitive, thus not triggering strict due process standards.

Inmate rightsDue processAdjustment CommitteePrison disciplineKeeplockCorrectional facilityAdministrative hearingCPLR article 78Appellate reviewConstitutional law
References
4
Case No. ADJ1825244 (SJO 0218090) ADJ409934 (SJO 0218091) ADJ2092501 (SJO 0243094) ADJ2437045 (SJO 0226020)
Regular
Feb 04, 2011

FESSAHAIE TESFAGIORGIS vs. LIFESCAN/JOHNSON & JOHNSON, OLD REPUBLIC Adjusted By BROADSPIRE

This case involves applicant Fessahaine Tesfagiorgis seeking reconsideration of a workers' compensation award. The defendant, Lifescan/Johnson & Johnson, also petitioned for reconsideration. The Appeals Board granted the defendant's petition and denied the applicant's, amending the original award. Specifically, the psychiatric impairment rating was reduced, resulting in a lower overall permanent disability award of 60% totaling $58,862.50. The applicant's attorney's fee was adjusted to 20% of this revised award, totaling $11,772.50, which the Board found to be reasonable given the case's complexity and the attorney's efforts.

WCABReconsiderationFindings and AwardIndustrial InjuryBilateral FeetRight ShoulderRight WristNeckPsychePermanent Disability
References
0
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