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

Case No. 2018 NY Slip Op 00213
Regular Panel Decision
Jan 11, 2018

Matter of Colamaio-Kohl v. Task Essential Corp.

Claimant Ernest Colamaio-Kohl sought workers' compensation benefits after sustaining an accidental injury during his employment as a skin care specialist. The Workers' Compensation Board determined an employer-employee relationship existed between Colamaio-Kohl and Task Essential Corp., and awarded benefits. Task Essential Corp. appealed, contesting the employer-employee relationship, arguing Colamaio-Kohl was a special employee of Bloomingdale's, and asserting improper notice of injury. The Appellate Division, Third Department, affirmed the Board's decision, finding substantial evidence supported the Board's findings. The court concluded that Task Essential Corp. exercised sufficient control over Colamaio-Kohl, he was not a special employee of Bloomingdale's, and late notice was excusable due to Task Essential Corp.'s actual knowledge of the accident.

Workers' CompensationEmployer-Employee RelationshipAccidental InjuryCourse of EmploymentLate NoticeSubstantial EvidenceAppellate ReviewThird DepartmentSkin Care SpecialistRetail Employment
References
19
Case No. 524528
Regular Panel Decision
May 17, 2018

Matter of Bloomingdale v. Reale Constr. Co. Inc.

Claimant, who suffered multiple work-related injuries in 1992 and 2011, appealed a Workers' Compensation Board decision classifying him with a 33% loss of wage-earning capacity and suspending awards due to a lack of labor market attachment. The Appellate Division, Third Department, affirmed the Board's determination regarding claimant's attachment to the labor market, finding it supported by substantial evidence of minimal job search efforts. However, the Court reversed the Board's assessment of a 33% loss of wage-earning capacity. It concluded that the medical evidence, extensive functional limitations, and limited vocational skills of the 55-year-old claimant did not support such a low impairment rating, necessitating a re-evaluation. The matter was remitted to the Workers' Compensation Board for further proceedings to correctly ascertain claimant's loss of wage-earning capacity.

Workers' Compensation LawPermanent Partial DisabilityLoss of Wage-Earning CapacityLabor Market AttachmentMedical ImpairmentVocational FactorsAppellate Division Third DepartmentRemittalBack InjuryNeck Injury
References
19
Case No. ADJ6628673
Regular
May 02, 2011

KAREY STEVENSON vs. BLOOMINGDALE'S / MACY'S CORPORATE SERVICES

This case involves a petition for reconsideration filed by the defendant, Bloomingdale's / Macy's Corporate Services, regarding a prior decision. The Workers' Compensation Appeals Board has granted reconsideration to allow for a more thorough review of the factual and legal issues. This action is intended to ensure a complete understanding of the record and enable the issuance of a just and reasoned decision. All future filings in this matter must now be submitted directly to the Board's San Francisco office.

WORKERS' COMPENSATION APPEALS BOARDPetition for ReconsiderationGranting ReconsiderationStatutory Time ConstraintsFactual and Legal IssuesJust and Reasoned DecisionDecision After ReconsiderationOffice of the CommissionersSan FranciscoCalifornia
References
0
Case No. ADJ4461663 (VNO 0501542)
Regular
Oct 01, 2014

JONATHAN TRASK, vs. BLOOMINGDALE'S, INC., permissibly selfinsured, administered by MACY'S CORPORATE SERVICES

The Workers' Compensation Appeals Board denied lien claimant Dr. Silver's petition for reconsideration. The Board found that Bloomingdale's timely paid the negotiated lien settlement by issuing a check within 30 days, and when it was not received, a stop payment was placed and a replacement check issued promptly. The Board affirmed the administrative law judge's decision to admit bank records supporting timely payment, despite procedural objections regarding disclosure. Therefore, penalties, sanctions, and costs sought by the lien claimant were denied.

Lien claimantPetition for ReconsiderationStipulation and OrderTimely PaymentPenaltiesSanctionsFeesCostsComputer screen shotsSubstantial Evidence
References
0
Case No. MISSING
Regular Panel Decision

GMA Accessories, Inc. v. DML Marketing Group, Ltd.

Plaintiff GMA Accessories, Inc. initiated a copyright infringement lawsuit against DML Marketing, Inc. and Bloomingdale’s, Inc., alleging that they marketed and sold "knock-off" versions of GMA's copyrighted "fuzzy monkey" socks. GMA subsequently moved to amend its complaint to include four additional corporate entities: The May Department Stores Co., Saks Inc., Federated Department Stores, Inc., and The Kroger Co., which were identified during discovery as having purchased and sold the infringing socks from DML. The court granted this motion to amend, concluding that the claims against all defendants arose from the same series of transactions and occurrences, and presented common questions of law and fact, thereby satisfying the requirements of Fed.R.Civ.P. 20(a). The defendants' objections regarding the appropriateness of joining parent corporations and jurisdictional matters were deemed premature, reserving these defenses for a later stage of the litigation. As a result, the existing answer from DML and Bloomingdale’s was applied to the newly amended complaint.

Copyright InfringementJoinder of PartiesFed.R.Civ.P. 20(a)Motion to Amend ComplaintProduct CounterfeitingRetailersIntellectual PropertyFederal Civil ProcedureJurisdictionDiscovery Phase
References
5
Case No. MISSING
Regular Panel Decision

Wheeler v. Bloomingdales

The Special Disability Fund appealed a Workers' Compensation Board decision that entitled an employer's workers' compensation carrier to reimbursement for deficiency compensation payments. The Fund argued the carrier waived its reimbursement right by not securing the Fund's consent to a claimant's personal injury settlement before the Fund's liability was established. The appellate court affirmed the Board's determination, finding that the Fund's consent was not required as its liability was established nearly a year post-settlement. The court also clarified that the carrier's failure to reserve offset rights did not entirely preclude reimbursement, distinguishing the case from a prior precedent where dual capacities led to a windfall.

Workers' Compensation LawSpecial Disability FundReimbursement ClaimsDeficiency CompensationPersonal Injury SettlementCarrier Consent RequirementsWaiver of ReimbursementStatutory Offset RightsAppellate Court DecisionWorkers' Compensation Board
References
4
Case No. ADJ2255696 (VNO 0497652)
Regular
May 15, 2009

TATIANA ZAKIANS vs. BLOOMINGDALES

Lien claimant Sam Alaiti, M.D., sought reconsideration of a WCJ's order reducing his lien by over $80\%$. The WCJ recommended granting reconsideration, noting procedural issues with the petition's timely attention by the judge. The Appeals Board found the petition timely filed, but it did not come to their attention until after the statutory reconsideration period had passed. Citing due process principles, the Board held the reconsideration period begins upon their actual notice. Therefore, the Board granted reconsideration, rescinded the prior order, and returned the matter to the trial level for further proceedings.

Lien claimantPetition for ReconsiderationOrder Reducing LienOrder to Pay Lienworkers' compensation administrative law judgeEAMSFileNetstatutory time periodAppeals Boarddue process
References
2
Case No. 2013 NY Slip Op 33641DJ]
Regular Panel Decision
Jan 25, 2013

DeRose v. Bloomingdale's Inc.

A carpenter (plaintiff) was injured in defendant's store while dismantling a wall. Despite attempting to retrieve a proper Baker scaffold, his supervisor directed him to use an inadequate A-frame ladder due to a company policy about customers. While using the ladder on an uneven floor, it shifted, causing him to fall and suffer fractures. Plaintiff sued under Labor Law §§ 200, 240 (1), and 241 (6). The Supreme Court denied partial summary judgment, but the appellate court modified this, finding the defendant absolutely liable under Labor Law § 240 (1) for failing to provide an adequate safety device that was made unavailable by supervisory instruction.

Construction Worker InjuryFall From HeightLabor Law § 240(1) ViolationInadequate Safety DeviceSupervisor's InstructionAbsolute LiabilityPartial Summary JudgmentAppellate DecisionWorkplace AccidentDemolition Project
References
11
Case No. ADJ6645567
Regular
Mar 26, 2012

DARLENE BERKE vs. BLOOMINGDALES, MACYS CORPORATE SERVICES

This case concerns a dispute over the disqualification of a Qualified Medical Evaluator (QME), Dr. Monosson, due to alleged ex parte communication initiated by the doctor regarding deposition fees. The Appeals Board dismissed the applicant's Petition for Reconsideration because the underlying finding was not a final order. However, the Board granted removal and rescinded the disqualification, ruling that Dr. Monosson was not disqualified. The Board emphasized that Labor Code section 4062.3(f) and CCR, Title 8, Section 35(k) protect the aggrieved party's election rights, and here, the applicant, the aggrieved party, did not seek a new QME.

Panel Qualified Medical EvaluatorDisqualificationEx Parte CommunicationPetition for ReconsiderationPetition for RemovalLabor Code Section 4062.3Aggrieved PartyMedical ReportsDeposition FeesPrepayment
References
4
Case No. ADJ7361233
Regular
Apr 17, 2012

WENDY A. HESS vs. BLOOMINGDALES'S INC., MACY'S CORPORATE SERVICES

In this workers' compensation case, the Appeals Board granted the defendant's petition for reconsideration to amend the original order. The Board affirmed the exclusion of the Qualified Medical Examiner's (PQME) report due to improper ex parte communication by the defendant. However, the Board's decision now orders the parties to select a new evaluator, as the applicant is entitled to that option under statute. The original finding of injury AOE/COE to the applicant's neck, right shoulder, wrist, and psyche was otherwise affirmed.

Workers' Compensation Appeals BoardPetition for ReconsiderationQualified Medical EvaluatorPQME reportinadmissible evidenceex parte communicationLabor Code section 4062.3Administrative Director Rule 35cumulative traumaorthopedic injury
References
8
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