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

Case No. 2024 NY Slip Op 00955
Regular Panel Decision
Feb 22, 2024

Darwish Auto Group, LLC v. TD Bank, N.A.

Plaintiffs Darwish Auto Group, LLC and Darwish General Corp. commenced an action against TD Bank, N.A. and Walid Darwish, alleging that Walid Darwish unilaterally modified bank account access for various users, which TD Bank subsequently refused to reverse without his individual approval. Plaintiffs sought a preliminary injunction and a declaratory judgment. The Supreme Court granted the preliminary injunction and later denied Walid Darwish's motion to dismiss the amended complaint. On appeal, the Appellate Division, Third Department, affirmed Supreme Court's decisions to grant the preliminary injunction and deny the motion to dismiss, finding plaintiffs established a probability of success on the merits, danger of irreparable injury, and a favorable balance of equities. However, the Appellate Division modified the order concerning the preliminary injunction by reversing the sum of the undertaking, remitting the matter to Supreme Court to determine an appropriate amount that bears a rational relation to potential damages Walid Darwish could suffer.

Preliminary InjunctionDeclaratory JudgmentBreach of Fiduciary DutyBreach of ContractBanking DisputesCorporate GovernanceManagement AuthorityShareholder DisputesAppellate ProcedureUndertaking Requirements
References
35
Case No. SDO 0327959
Regular
Aug 03, 2007

IRMA MENDEZ vs. SUNRISE SENIOR LIVING, AMERICAN HOME ASSURANCE

This Workers' Compensation Appeals Board case clarifies the commencement date for temporary disability payments under Labor Code section 4656(c)(1). The Board amended a prior order, ruling that the commencement date is the date the first payment is actually issued, not the date the disability is first owed. Consequently, the employer's liability for temporary disability is limited to 104 weeks within two years from the actual payment date of June 2, 2005.

Workers' Compensation Appeals BoardTemporary disability indemnityLabor Code section 4656(c)(1)Date of commencementFindings and OrderPetition for reconsiderationExpedited hearingApplication for Adjudication of ClaimStipulationCompensable weeks
References
1
Case No. SAC 349462
Regular
Mar 11, 2008

QAHER MOKDADI vs. HENDRICK AUTOMOTIVE, FEDERAL INSURANCE COMPANY

In this workers' compensation case, the Appeals Board clarified the commencement date for temporary disability payments under Labor Code section 4656(c)(1). Applying its en banc decision in *Hawkins v. Amberwood Products*, the Board held that the two-year period for temporary disability payments begins on the date indemnity is *first paid* to the worker, not when it is first owed or when unemployment benefits are reimbursed. Therefore, the commencement date was established as November 9, 2006, the date the applicant received his first temporary disability indemnity check.

Workers' Compensation Appeals BoardHendrick AutomotiveFederal Insurance CompanyQAHER MOKDADIauto service technicianleft shoulder and spine injuryEmployment Development Department (EDD)temporary disability indemnityLabor Code section 4656(c)(1)date of commencement
References
2
Case No. MISSING
Regular Panel Decision
Jun 15, 1999

In re the Arbitration between State Insurance Fund & Country-Wide Insurance

The Supreme Court, New York County, affirmed an order dated June 15, 1999. This order granted a workers' compensation insurer's application to vacate an arbitration award that had denied its claim against an automobile liability insurer as time-barred. The court also denied the automobile insurer's cross-motion to confirm the award. The case was remanded for a rehearing on the workers' compensation insurer's claim for payments made to an injured worker within the three-year Statute of Limitations, commencing from December 4, 1994, the date of the arbitration proceeding. The court found that the arbitrator's acceptance of the Statute of Limitations defense was arbitrary and capricious, as precedent establishes a three-year limitation period from the date of the first payment, not the date of injury, only precluding recovery of payments made more than three years prior to the commencement of suit.

Automobile LiabilityArbitration Award VacatedStatute of Limitations DefenseJudicial Review StandardArbitrary and Capricious RulingInter-insurer ClaimRemand for RehearingAppellate AffirmationLegal PrecedentClaim Timeliness
References
2
Case No. ADJ2564772
Regular
Jun 24, 2010

JUANITA MORALES vs. FRALOCK INDUSTRIES, STATE COMPENSATION INSURANCE FUND, CIGA

This case involved an applicant seeking reconsideration of a Workers' Compensation Appeals Board (WCAB) decision. The original ruling awarded 52% permanent disability for upper extremity injuries but set the payment commencement date at July 31, 2006. The applicant argued this date was not supported by medical evidence. The WCAB granted reconsideration, finding that permanent disability payments should commence on October 8, 2004, the date of the primary treating physician's permanent and stationary report. The original award was otherwise affirmed.

Juanita MoralesFralock IndustriesLockwoodState Compensation Insurance FundCIGALegion InsuranceliquidationADJ2564772VNO 0508264Reconsideration
References
0
Case No. ADJ4088637 (RIV 0053165) ADJ622123 (RIV 0068585)
Regular
May 26, 2010

JAMES B. OTT vs. CITY OF ANAHEIM

This case involves an applicant seeking to correct a clerical error in a prior Workers' Compensation Appeals Board (WCAB) decision. The applicant correctly points out that the previously awarded commencement date for temporary total disability indemnity was January 23, 2004, whereas a lower decision had established it as January 23, 2003. The defendant did not dispute the earlier commencement date during their prior reconsideration petition. The WCAB reviewed the file and determined the January 23, 2004 date was indeed a clerical error, ordering its correction to January 23, 2003.

Workers' Compensation Appeals BoardPetition to Correct Clerical ErrorTemporary Total Disability IndemnityCommencement DateService RetirementAmended Findings and AwardWorkers' Compensation Administrative Law JudgeOpinion and Decision after ReconsiderationJoint Findings of Fact
References
3
Case No. ADJ3394569 (OAK 0341726) ADJ1459791 (OAK 0314647)
Regular
Nov 01, 2018

Wallace Garietz vs. Vertis Communications, ACE American Insurance Company

This case involves a dispute over the commencement date for permanent total disability (PTD) payments. The defendant seeks to change the PTD start date from December 14, 2006, to June 18, 2015, arguing entitlement to PTD only occurred in 2015. The Appeals Board denied reconsideration, upholding the original finding that applicant was entitled to PTD payments commencing in 2006. This decision aligns with established precedent that PTD benefits, including cost-of-living adjustments (COLAs), begin when the applicant first becomes entitled to those benefits, which in this case was their original permanent and stationary date in 2006.

Permanent Total DisabilityCommencement DateTemporary Total DisabilityPermanent Partial DisabilityMaximum Medical ImprovementCost of Living AdjustmentCOLABaker v. Workers' Comp. Appeals Bd.Permanent and Stationary DateBrower v. David Jones Construction
References
4
Case No. MISSING
Regular Panel Decision
Dec 04, 1989

Richardson v. Hetelekides

The Workers' Compensation Board imposed a 20% penalty on Insurance Company of North America, the carrier for employer Savos Hetelekides, for late payment of a $1,125 award to the claimant. The carrier argued that the 10-day payment period for compensation awards should commence upon its receipt of the notice of award, not the filing date. However, both a Workers’ Compensation Law Judge and the Board affirmed the penalty, stating that no extra time is allowed for mailing and the period begins from the notice's filing date. The employer and carrier appealed this determination to the appellate court. The appellate court affirmed the Board's decision, reiterating that the 10-day period for payment of a compensation award commences on the date of filing of the notice of award.

Workers' CompensationPenalty for Late PaymentLate Payment of Award10-Day Payment PeriodNotice of AwardFiling Date vs. Receipt DateAppellate ReviewBoard Decision AffirmedInsurance Carrier LiabilityEmployer Appeal
References
2
Case No. SAL 0087232
Regular
Aug 09, 2007

MICHAEL VARNEY vs. STATE OF CALIFORNIA, OFFICE OF EMERGENCY SERVICES, legally uninsured and administered by STATE COMPENSATION INSURANCE FUND

This case involves a workers' compensation claim for knee injuries sustained by an applicant. Both the applicant and defendant sought reconsideration of the initial award; the applicant argued for an earlier commencement date for permanent disability, while the defendant contested its liability for 40% of the disability. The Appeals Board granted reconsideration for both parties and rescinded the original award, remanding the case for further proceedings to allow for reconsideration of the permanent disability commencement date and defendant's liability arguments.

Workers' Compensation Appeals Boardlegally uninsuredState Compensation Insurance Fundemergency coordinatorpermanent disabilitylife pensionpermanent and stationary dateLabor Code section 5500.5petition for reconsiderationFindings and Award
References
0
Case No. MISSING
Regular Panel Decision
Apr 10, 1998

Browning v. County Fence Co.

The Supreme Court of Westchester County erred in applying Workers' Compensation Law § 11, as amended, to a third-party action. The appellate court determined that the amendment should be applied prospectively to actions commenced by employees after its effective date. Although the third-party action itself was commenced after the amendment's effective date, the main action by the employee predated it. Consequently, the amendment was deemed inapplicable, leading to the reversal of the order that had dismissed the third-party complaint. The third-party complaint was therefore reinstated.

Personal Injury DamagesThird-Party ClaimsWorkers' Compensation Law § 11Statutory AmendmentsProspective ApplicationAppellate ProcedureMotion to DismissIndemnificationNew York Supreme CourtCase Precedent
References
2
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