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

Case No. ADJ7888241, ADJ9249140
Regular
Mar 02, 2016

Bruce White vs. Montecito Country Club (MCC BB Property, LLC), Liberty Mutual Insurance Company

The applicant, Bruce White, sought reconsideration of a Workers' Compensation Appeals Board (WCAB) decision that awarded him 52% permanent disability for a back injury. White argued he was 100% disabled, relying on a PQME's opinion, but the WCAB found this opinion conclusory and lacking substantial evidence. The WCAB affirmed the 52% rating, stating it was presumptively correct and supported by the evidence. Therefore, the Petition for Reconsideration was denied.

Workers' Compensation Appeals BoardPetition for ReconsiderationFindings Award and OrderCumulative InjuryPermanent DisabilityPanel Qualified Medical EvaluatorAMA GuidesRange of Motion MethodLumbar SpineRadiculopathy
References
0
Case No. ADJ10863930
Regular
Aug 05, 2019

BERNARDINO HERNANDEZ vs. HAMMERHEAD AVIATION, PREFERRED EMPLOYERS

The Workers' Compensation Appeals Board denied the defendant's petition for reconsideration. The WCAB affirmed the finding that the applicant sustained injuries to his neck, elbows, and bilateral extremities, based on substantial evidence from treating physicians. The Board found the defendant's argument that the medical opinions were conclusory unpersuasive, and the PQME's opinions on causation lacked sufficient reasoning. The applicant's proof of injury arising out of and occurring during employment was found to be reasonably probable.

WCABPetition for ReconsiderationFindings of Fact and OrderInjuryNeckElbowsBilateral ExtremitiesPost-termination defenseLabor Code Section 5412Substantial Evidence
References
0
Case No. MISSING
Regular Panel Decision
May 17, 2016

United States v. Nesbeth

Chevelle Nesbeth was convicted by a jury for importation of cocaine and possession with intent to distribute. Senior District Judge Block rendered a non-incarceratory sentence of one-year probation, with special conditions including six months' home confinement and 100 hours of community service. The judge wrote this opinion to emphasize the importance of considering the numerous statutory and regulatory collateral consequences facing Nesbeth as a convicted felon, such as restrictions on employment, housing, and voting. These consequences were extensively balanced against 18 U.S.C. § 3553(a) factors to determine a just punishment. The opinion advocates for legal counsel and the Probation Department to proactively address collateral consequences in all future pre-sentence reports and sentencing proceedings.

Collateral ConsequencesSentencing ReformCriminal JusticeProbationary SentenceDrug Trafficking OffensesFelony ConvictionJudicial DiscretionFederal Sentencing GuidelinesRehabilitationRecidivism
References
55
Case No. MISSING
Regular Panel Decision

Pizzo v. Barnhart

Plaintiff Kathleen Pizzo appealed the Commissioner of the Social Security Administration's final determination denying her disability insurance benefits. The District Court reviewed the ALJ's decision, which had assigned no weight to the treating physician's opinion and significant weight to a consulting physician's report. The court found that the ALJ erred by failing to give appropriate weight to the treating physician's opinion, not adequately developing the administrative record to obtain missing medical notes, and giving undue weight to the consulting physician's report which did not explicitly support the capacity for sedentary work. Consequently, the Commissioner's determination was remanded for further administrative proceedings consistent with the District Court's decision, granting the plaintiff's motion for judgment on the pleadings to the extent of the remand and denying the Commissioner's cross-motion.

Social Security ActDisability Insurance BenefitsAdministrative Law JudgeTreating Physician RuleResidual Functional CapacitySedentary WorkMedical EvidenceRemandSubstantial EvidenceRecord Development
References
23
Case No. MISSING
Regular Panel Decision

Formal Opinion No.

This opinion from the Chairman of the New York Workers' Compensation Board addresses the priority of income execution and income deduction orders, established by the 1985 Support Enforcement Act (CPLR §§ 5241, 5242), against other statutory deductions from workers' compensation awards. Historically, WCL § 33 provided broad exemptions for workers' compensation benefits. However, WCL §§ 206(2) and 25(4)(a) allow for reimbursement of disability insurers and employers for advance payments, respectively, and WCL § 24 establishes liens for attorneys' fees, traditionally enjoying highest priority. The 1985 Act amended WCL § 33 to make benefits subject to support enforcement and also stipulated that income executions and deduction orders take priority over other assignments, levies, or processes. The Board concluded that claims for attorneys' fees and reimbursements by disability insurance carriers and employers are to be deducted first from the workers' compensation award. The support enforcement remedies under CPLR §§ 5241 and 5242 then apply to the balance of the workers' compensation benefits paid to the employee. This approach ensures prompt payment to injured workers and prevents double payment issues.

Workers' CompensationSupport Enforcement ActIncome ExecutionIncome DeductionLien PriorityStatutory InterpretationDisability Benefits ReimbursementEmployer ReimbursementAttorneys' Fees PriorityCPLR 5241
References
9
Case No. MISSING
Regular Panel Decision

In re McGee

This opinion addresses a motion by a respondent father in a child protective proceeding to compel his three-year-old daughter, the alleged victim of sexual abuse, to testify as a defense witness. The petitioner Commissioner of Social Services had previously presented the child's hearsay testimony. Both the Commissioner and the Law Guardian opposed the motion, citing potential emotional trauma to the child, but provided no specific evidence of harm. The court ruled that a child's bare statement of unwillingness to testify or a conclusory statement of potential harm is insufficient to obtain a protective order preventing testimony. Balancing due process rights of the respondent with the state's obligation to protect the child, the court granted the motion, ordering the child to be produced for an in-chambers interview.

child protective proceedingsexual abusechild witnesshearsay testimonydue processright to call witnessesFamily Court Actjudicial discretionparens patriaecross-examination
References
9
Case No. MISSING
Regular Panel Decision

Marley v. Board of Trustees

Petitioners Lawrence J. Harley and Gerard Ledwith, retired firefighters who participated in Ground Zero rescue and recovery, challenged the denial of their accident disability retirement benefits. The Fire Department's Medical Committee found them unfit for duty due to clinical asthma with airway hyperreactivity, warning of severe risks from future exposure. However, the Medical Board denied their applications, finding insufficient evidence of disability and concluding they had only mild intermittent asthma. The court annulled the Medical Board's decisions, ruling that they were conclusory and lacked an articulated, fact-based medical opinion connecting the diagnosed condition to the performance requirements or safety risks of firefighting. The case was remanded to the Board of Trustees for new medical reports and determinations.

Firefighter disability benefitsAccident disability retirementLine-of-duty retirementGround Zero rescue workersWorld Trade Center Disability LawAsthma with airway hyperreactivityMedical Board determinationAdministrative Code Section 13-353Judicial review of administrative decisionsAnnulment and remand
References
25
Case No. ADJ8914346
Regular
Aug 05, 2019

GERALD FREENY vs. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION/STATE OF CALIFORNIA

The Workers' Compensation Appeals Board affirmed a prior award finding the applicant sustained injury to his bilateral knees, hearing loss, and hypertension during his employment. The Board rejected the defendant's arguments regarding due process and substantial evidence, finding the defendant waived its right to contest the injury period by stipulating to it. Furthermore, the Board found the defendant failed to meet its burden of proof for apportionment of permanent disability due to conclusory medical opinions.

WCABFindings and Awardpermanent disabilitybilateral kneeshearing losshypertensionparole officerqualified medical evaluatororthopedicsapportionment
References
1
Case No. ADJ10121570
Regular
Aug 19, 2016

TRACY BAKER vs. FOOTHILL DEANZA COMMUNITY COLLEGE DISTRICT

In this Workers' Compensation Appeals Board case, the defendant sought reconsideration of an award finding the applicant sustained a work-related rib and chest injury. The defendant argued the QME's opinion on permanent disability and future medical treatment lacked substantial medical evidence, as it relied on analogy due to the absence of a specific rating in the AMA Guides. The Appeals Board affirmed the original award but deferred the issues of permanent disability and attorney's fees, finding the QME's analogical rating was conclusory and unsupported by sufficient reasoning. A dissenting commissioner argued the analogy was permissible under precedent allowing clinical judgment for poorly understood conditions manifesting solely as subjective symptoms.

Workers' Compensation Appeals BoardReconsiderationFindings and AwardPermanent DisabilityFuture Medical TreatmentQualified Medical EvaluatorWhole Person ImpairmentSubstantial Medical EvidenceAMA GuidesClinical Judgment
References
7
Case No. ADJ8700541
Regular
Oct 17, 2019

ZAHRA STEPHENS vs. COX ENTERPRISES, INC.

The Appeals Board granted reconsideration to review the WCJ's finding of permanent and total disability based on the opinions of a psychologist, Dr. Windman, and a vocational expert, Mr. Wilkinson. The Board found that Dr. Windman's opinion lacked substantial evidence due to inconsistencies, inadequate record review, and conflicts with other medical opinions. Consequently, Mr. Wilkinson's vocational opinion, which relied heavily on Dr. Windman's findings, was also deemed not substantial evidence. The case is remanded to the trial level for further proceedings and a new determination of permanent disability.

Workers' Compensation Appeals BoardReconsiderationPermanent Total DisabilityMedical OpinionVocational ExpertSubstantial EvidencePQMENeurologistPsychologistOrthopedist
References
10
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