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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 03030 [127 AD3d 446]
Regular Panel Decision
Apr 09, 2015

Sevilla v. Calhoun School, Inc.

Plaintiff Reyna Sevilla appealed an order granting summary judgment to defendants, The Calhoun School, Inc., and others, after her complaint was dismissed. The case involved a slip and fall incident during a freezing-rain storm. The Supreme Court, Bronx County, granted summary judgment to the defendants, finding no negligence on their part for failing to remove ice during a storm in progress. The Appellate Division affirmed this decision, noting that defendants followed their regular maintenance protocols and plaintiff failed to provide evidence that their actions created or exacerbated a hazardous condition. The court also found plaintiff's other arguments unavailing.

Slip and FallSummary JudgmentNegligenceIce RemovalStorm in Progress DoctrinePremises LiabilityMaintenance ProtocolHazardous ConditionAppellate ReviewAffirmed Decision
References
2
Case No. 2023 NY Slip Op 03683 [218 AD3d 446]
Regular Panel Decision
Jul 05, 2023

Gamez v. New Line Structures & Dev., LLC

The plaintiff Carlos J. Gamez, a carpenter, sustained injuries after falling through an unmarked and unsecured hole on a work deck during construction. He and his wife commenced an action alleging a violation of Labor Law § 240 (1) against New Line Structures & Development, LLC, Hallets Building 1 SPE, LLC, and Hallets Astoria, LLC. The plaintiffs moved for summary judgment on the issue of liability, which the Supreme Court, Queens County, denied. The Appellate Division affirmed the lower court's decision, finding that the defendants raised a triable issue of fact regarding whether Gamez's own conduct was the sole proximate cause of his injuries, despite the plaintiffs' prima facie showing of a Labor Law § 240 (1) violation.

Personal InjuryConstruction AccidentLabor Law § 240(1)Summary JudgmentAppellate ReviewProximate CauseComparative NegligenceFall ProtectionSafety DevicesPremises Liability
References
11
Case No. 2020 NY Slip Op 00923 [180 AD3d 446]
Regular Panel Decision
Feb 06, 2020

Denson v. Donald J. Trump for President, Inc.

Jessica Denson, a former employee of Donald J. Trump for President, Inc., filed a lawsuit alleging sex discrimination and hostile work environment, which led to the campaign initiating arbitration for alleged breaches of her non-disclosure and non-disparagement agreement (NDA). The arbitrator issued awards against Denson for disclosing confidential information in a federal action challenging the NDA and for statements on social media. The Supreme Court affirmed these awards, but the Appellate Division, First Department, reversed the judgment and vacated the arbitration awards. The appellate court ruled that penalizing Denson for statements made in a judicial proceeding violated strong public policy protecting freedom of expression in court. Furthermore, the arbitrator exceeded his authority by considering events that occurred after the initial demand for arbitration, making the entire award invalid.

Arbitration award vacaturNon-disclosure agreement (NDA)Non-disparagement agreementPublic policyArbitrator authorityJudicial privilegeAppellate reviewEmployment disputeSex discriminationHostile work environment
References
39
Case No. ADJ1408531
Regular
Sep 22, 2008

DULCE STONE vs. COUNTY OF LOS ANGELES/SHERIFF'S DEPARTMENT, TRISTAR RISK MANAGEMENT

Reconsideration granted; WCJ's finding limiting credit to temporary disability indemnity reversed; defendant entitled to $8,446.76 credit against temporary and permanent disability indemnity.

Workers' Compensation Appeals BoardReconsiderationFindings and AwardTemporary Disability IndemnityPermanent DisabilityLabor Code section 4658(d)Credit for OverpaymentAgreed Medical Examiner (AME)Permanent and Stationary (P&S)Vocational Rehabilitation
References
0
Case No. ADJ4700514 (RDG 0104247) ADJ3038015 (RDG 0121741)
Regular
Nov 10, 2008

MICHELLE TOMEI vs. GENUINE PARTS, ST. PAUL TRAVELERS INSURANCE COMPANY

The Workers' Compensation Appeals Board dismissed defendant's petition for reconsideration because it was filed two days after the statutory deadline. The deadline for filing was September 8, 2008, but the petition was not received by the Board until September 10, 2008. The Board lacked jurisdiction to consider an untimely petition, even with consideration of CCP § 473.

CommutationPetition for ReconsiderationWorkers' Compensation Appeals BoardWCJLabor CodeCode of Civil ProcedureTimelinessJurisdictionalOrder of CommutationOpinion on Decision
References
4
Case No. LBO 0365278, LBO 0381401, LBO 0373147
Regular
Aug 12, 2008

JANIE LEWINGS vs. LOS ANGELES COUNTY OFFICE OF EDUCATION, HAZELRIGG RISK MANAGEMENT SERVICES, INC.

The Workers' Compensation Appeals Board granted RS Medical's Petition for Reconsideration, rescinding a previous Order of Dismissal. The WCJ acknowledged overlooking the applicant's Declaration of Readiness to Proceed, which rendered the dismissal improper as it was issued before proper objection time under CCP 1013. The case is now returned to the trial level for further proceedings and a new decision.

RS MedicalPetition for ReconsiderationOrder of DismissalWCJmedical-legal costsCCP 1013Declaration of Readiness to Proceedrescindedreturned to trial level
References
1
Case No. ADJ3025610 (LAO 0804371) ADJ2399189 (LAO 0833561) ADJ616704 (LAO 0833554) ADJ2590395 (LAO 0833562)
Regular
Jun 18, 2019

ROSA RENTERIA, vs. LOS ANGELES UNIFIED SCHOOL DISTRICT,

This case involves a lien claimant seeking reconsideration of their lien dismissal for failing to appear at a noticed lien conference. The lien claimant argued human error constituted excusable neglect under CCP 473(b). The WCJ found no good cause for the non-appearance and dismissed the lien. The Appeals Board denied reconsideration, affirming the dismissal because the explanation of "human error" was skeletal and did not adequately explain the failure to appear or demonstrate good cause.

Workers' Compensation Appeals BoardLien ClaimantPetition for ReconsiderationOrder Dismissing Lien ClaimWCJRule 10562CCP 473(b)Excusable NeglectGood CauseFox v. Workers' Comp. Appeals Bd.
References
1
Case No. ADJ9188065
Regular
Dec 09, 2016

CESAR SALAZAR vs. GARMENT LINE, INC., OAK RIVER INSURANCE COMPANY

The Workers' Compensation Appeals Board denied a petition for reconsideration in a case involving an applicant and defendants Garment Line, Inc. and Oak River Insurance Company. The Board adopted the WCJ's report, finding that the lien claimant failed to appear at a lien trial and did not demonstrate good cause for their absence or a basis for relief under CCP 473. The Board also noted that defendant's answer violated Appeals Board rules by attaching improper documents.

Petition for ReconsiderationLien claimantLien trialDismissalAppeals Board Rule 10562(e)(1)Good causeCode of Civil Procedure section 473Defendant's AnswerAppeals Board Rule 10842(c)Discarded documents
References
3
Case No. ADJ7300335
Regular
Jun 04, 2019

LINDA PAUL vs. ALICE’S PRESCHOOL, NATIONAL LIABILITY & FIRE INSURANCE COMPANY administered by AMERICAN COMMERCIAL

The Workers' Compensation Appeals Board affirmed a judge's order dismissing lien claimant Western Imaging's lien. Western Imaging failed to appear at a lien conference, which the judge dismissed under WCAB Rule 10562. The Appeals Board found that a calendaring error, as claimed by Western Imaging, did not constitute good cause for relief under CCP 473(b), especially given that the representative was present when the hearing was continued. Therefore, the dismissal of the lien claim was upheld.

Lien ClaimantReconsiderationWCJDismissing Lien ClaimWCAB Rule 10562CCP 473(b)Human ErrorCalendaring ErrorGood CauseFox v. Workers' Comp. Appeals Bd.
References
3
Case No. ADJ6545416
Regular
Jun 10, 2016

CARLOS LOPEZ vs. MUSEUM SQUARE, STATE COMPENSATION INSURANCE FUND INSURED

Tri-County Medical Group sought reconsideration of a dismissal for non-appearance at a lien trial, arguing their representative had a conflicting appearance and this constituted excusable neglect. While a notice of representation was filed, the Board denied reconsideration. The Board found Tri-County failed to provide adequate grounds for relief under CCP 473(b), as the representative's attendance at other matters, without prior notice to the court, did not rise to the level of excusable neglect. Therefore, the dismissal of Tri-County's lien stands.

Workers' Compensation Appeals BoardLien Claim DismissalReconsiderationNon-AppearanceLien ConferenceExcusable NeglectCode of Civil Procedure Section 473(b)Petition for ReconsiderationNotice of RepresentationWCJ
References
1
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