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

Case No. 2017 NY Slip Op 06151
Regular Panel Decision
Aug 16, 2017

Berman-Rey v. Gomez

The plaintiff, Gerson Berman-Rey, was allegedly injured when a plywood fence at a construction site fell and hit him. He was employed as an assistant carpenter on a renovation project owned by the defendants, Sigifredo Gomez and Liliana Gomez. Berman-Rey commenced an action alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). The Supreme Court, Queens County, granted summary judgment to the defendants on the claims of common-law negligence and Labor Law §§ 200 and 240(1). The Appellate Division modified the order, denying summary judgment on common-law negligence and Labor Law § 200, finding triable issues of fact regarding the defendants' creation of or notice of the dangerous condition. However, the court affirmed the dismissal of the Labor Law § 240(1) claim, concluding that the falling fence was not an object being hoisted or requiring securing for the purpose of the undertaking.

Construction Site AccidentPlywood FenceSummary JudgmentCommon-Law NegligenceLabor Law 200Labor Law 240(1)Dangerous Premises ConditionOwner LiabilityContractor LiabilityFalling Object Case
References
12
Case No. ADJ3080176 (LAO 0871214)
Regular
Sep 14, 2018

ROSS ISAACS vs. DOUG APATOW AGENCY, INC., STATE COMPENSATION INSURANCE FUND

The Appeals Board denied defendant's petition for removal, upholding the WCJ's order allowing the deposition of the Agreed Medical Evaluator (AME), Dr. Berman. Defendant argued the deposition was improper because Dr. Berman's prior reports were stricken from the record. However, the Board found no substantial prejudice or irreparable harm, noting the order permitted further record development. The Board clarified that even if Dr. Berman's reports were considered stricken, the WCJ could still develop the record by seeking supplemental information from the AME.

Removal petitionAgreed Medical EvaluatorOtorhinolaryngologyMinute OrderPetition to StrikeOrder Taking Case Off CalendarSupplemental medical reportsDepositionSubstantial prejudiceIrreparable harm
References
10
Case No. MISSING
Regular Panel Decision

In re the Arbitration between Cluett, Peabody & Co. & Amalgamated Clothing Workers of America

Petitioner moves to stay arbitration, contending there is no contractual relationship requiring arbitration of disputes arising from Bud Berman's employment practices. The dispute centers on an agreement clause stating the employer shall not hire contractors to manufacture garments unless its own factories are supplied with work and the contractor is in a contractual relationship with the Union. It is asserted that the company's factories are working part-time while contracting operations are indirectly accomplished, allegedly violating the agreement. The court determined that whether the company purposefully diverted manufacturing and contract operations through its wholly-owned subsidiary, Bud Berman, constitutes an arbitrable issue concerning contractual meanings and breach. Therefore, the motion to stay arbitration is denied.

ArbitrationEmployment PracticesContractual RelationshipSubsidiaryUnion AgreementWork DiversionMotion DeniedInterpretation of Contract
References
1
Case No. ADJ3744023
Regular
May 15, 2009

JOSEPH CRABTREE vs. MITCHELL BERMAN CABINET MAKER, STATE COMPENSATION INSURANCE FUND

In this workers' compensation case, the defendant sought reconsideration of an award finding an industrial injury to the applicant's abdomen/groin (hernia) and a resulting peripheral nerve injury causing 24% permanent disability. The defendant argued the peripheral nerve injury was not supported and the disability rating was incorrect due to misapplication of the AMA Guides. The Board denied reconsideration, adopting the judge's report and finding that the medical evidence supported the peripheral nerve injury and the AMA Guides were correctly applied. The Board found the agreed medical evaluator's conclusions were well-reasoned and supported by the evidence.

Workers Compensation Appeals BoardIndustrial InjuryHerniaPeripheral Nerve InjuryPermanent DisabilityAgreed Medical Evaluator (AME)AMA GuidesPetition for ReconsiderationMedical EvidenceWCJ
References
4
Case No. ADJ7033087
Regular
Jul 03, 2012

Alan Beaven, Deceased Kimberly Beaven, Widow vs. Berman, Devalerio Pease & Tabacco, State Compensation Insurance Fund

This case concerns a petition for reconsideration filed by the defendant employer, SCIF, after a Stipulated Findings and Award was issued. The WCJ recommended denying the petition, finding no evidence of mutual mistake or fraud to justify setting aside the award. The award, which provided death benefits to the decedent's dependents, was agreed upon by the parties despite the WCJ warning the defendant that they were offering more benefits than statutorily required. Ultimately, the Workers' Compensation Appeals Board dismissed the petition for reconsideration as it had been withdrawn by the petitioner.

Workers' Compensation Appeals BoardPetition for ReconsiderationDismissed PetitionStipulated Findings and AwardDeath BenefitsTerrorist ActivitySeptember 112001Injury Resulting in DeathGAL for Minor
References
2
Case No. SFO 0492500
Regular
Jul 16, 2007

JACK BERMAN (Dec.), CAROL KINGSLEY (Wid.) vs. BRONSON, BRONSON & McKINNON, CAMBRIDGE INTEGRATED SERVICES GROUP/CIGA for FREMONT (SAN DIEGO)

This case concerns CIGA's petition for reconsideration of a decision awarding the applicant a self-imposed 10% penalty on death benefits and an additional penalty for unreasonable refusal to pay. The Appeals Board denied reconsideration, holding that death benefits paid in installments are subject to Labor Code section 4650(d) because they are paid in the same manner and amounts as temporary disability indemnity. The Board remanded the case to the trial level for further proceedings, including consideration of the applicant's separate petition for penalties.

CIGAFremont Corporation in liquidationCambridge Integrated ServicesRescinding OrderFindings and AwardLabor Code section 4650(d)self-imposed penaltydeath benefitsLabor Code section 4661.5unreasonable refusal to pay
References
3
Case No. ADJ7123885
Regular
Mar 30, 2015

KATHY GRIFFITHS vs. PRUDENTIAL, CRUM FORSTER

This case involves a Petition for Removal filed with the Workers' Compensation Appeals Board. The applicant, Kathy Griffiths, is represented by Berman More Gonzalez, and Prudential and Crum Forster are the defendants. The petitioner has withdrawn their Petition for Removal. Consequently, the Board has issued an order dismissing the petition.

Petition for RemovalDismissalWorkers' Compensation Appeals BoardApplicantDefendantCase NumberAnaheim District OfficeOrderWithdrawalPetitioner
References
0
Case No. OXN 131251
Regular
Dec 05, 2007

DORIS STOCKS vs. THE URBAN GROUP dba THE GABLES OF OJAI, CALIFORNIA INSURANCE GUARANTEE ASSOCIATION, INTERCARE INSURANCE SERVICES, LEGION INSURANCE

The Appeals Board rescinded a penalty against CIGA for delayed temporary disability payments, finding penalties are not covered claims. The Board also amended the award to apportion one-third of the applicant's permanent disability to pre-existing degenerative disease, reducing the awarded permanent disability based on Dr. Berman's opinion. Consequently, the applicant's awarded permanent disability is reduced to 51%.

Workers' Compensation Appeals BoardDORIS STOCKSTHE URBAN GROUPTHE GABLES OF OJAICALIFORNIA INSURANCE GUARANTEE ASSOCIATION (CIGA)INTERCARE INSURANCE SERVICESLEGION INSURANCEOpinion and Decision After ReconsiderationTemporary DisabilityPermanent Disability
References
6
Case No. MISSING
Regular Panel Decision

Blitman & King v. Davis

The court unanimously affirmed an order from Special Term by Judge Aloi, with costs. This appeal originated from an order of summary judgment from the Supreme Court, Onondaga County. The decision referenced the case of Fink, Weinberger, Fredman, Berman & Lowell v Petrides, 80 AD2d 781. The appellate panel consisted of Dillon, P. J., Denman, Boomer, Green, and Schnepp, JJ.

AppealSummary JudgmentAffirmedCostsSpecial TermAppellate CourtUnanimous DecisionJudicial PanelLegal PrecedentOnondaga County Court
References
1
Case No. ADJ4301821
Regular
Sep 17, 2014

ELEN HARRIS vs. ANTELOPE VALLEY NURSING CARE CENTER, PHILCO INSURANCE COMPANY

The Workers' Compensation Appeals Board denied Elen Harris's Petition for Reconsideration, upholding the prior decision. The WCAB adopted the Workers' Compensation Judge's report, finding the applicant's arguments regarding the admission of a mediation brief and Dr. Berman's apportionment opinion to be without merit. New issues raised in the petition were not considered as they were not raised at trial. The Board also noted that the amended petition was not accepted as a supplemental filing request was not submitted.

WORKERS' COMPENSATION APPEALS BOARDPetition for ReconsiderationWCJLabor Code § 5904Cal. Code Regs. tit. 8 § 10848WCAB Rules of Practice and Procedurecertified nurse's assistantlow back injurymicrodisectomylumbar spine
References
1
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