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

Case No. ADJ9376675
Regular
Oct 20, 2015

JESSICA FIELD vs. INGLEWOOD POLICE DEPARTMENT, ADMINSURE

The Workers' Compensation Appeals Board denied the defendant's petition for reconsideration. The defendant challenged the permanent disability rating, arguing the DRE method, rather than the ROM method, was improperly applied by the QME. The Board adopted the WCJ's report, which found the QME's reliance on the DRE method, specifically Category IV, was supported by substantial medical evidence and properly applied under the AMA Guides, Fifth Edition. The defendant's contention that the rating was invalid under *Blackledge* was also rejected, as the QME report met legal and regulatory requirements.

Workers' Compensation Appeals BoardPetition for ReconsiderationDENIEDINGLEWOOD POLICE DEPARTMENTADMINSUREPermanent DisabilityAMA Guides Fifth EditionDRE MethodLumbar Spine Category IVwhole person impairment
References
2
Case No. MISSING
Regular Panel Decision
Oct 20, 2022

Borelli v. JB IV, LLC

Plaintiff Patrick K. Borelli sustained personal injuries after falling from a ladder while performing exterior painting work at a property owned by defendant JB IV, LLC and leased to defendant Champz of Binghamton, LLC. He and his wife commenced an action alleging violations of Labor Law §§ 200, 240 (1), and 241 (6). The Supreme Court partially granted defendants' motion for summary judgment by dismissing two regulatory violations under Labor Law § 241 (6), but otherwise denied both parties' motions. On appeal, the Appellate Division affirmed the denial of defendants' motion for summary judgment on the remaining Labor Law claims, finding unresolved questions of fact regarding the creation of the dangerous condition and the adequacy of safety devices provided. The appeal from the initial order was dismissed as superseded by an amended order.

Labor Law § 200Labor Law § 240 (1)Labor Law § 241 (6)Summary Judgment DenialLadder FallConstruction AccidentsProperty Owner LiabilityContractor LiabilitySafe Place to WorkIndustrial Code Violations
References
19
Case No. MISSING
Regular Panel Decision

Misseritti v. Mark IV Construction Co.

The case involves a plaintiff's decedent who was injured when a wall collapsed at a construction site. The plaintiff moved for partial summary judgment under Labor Law § 240 (1), arguing it was a 'falling object' case. The court disagreed, holding that the wall's collapse, being at the same level as the worksite, did not fall under the statute's protection for elevation-related risks. Therefore, summary judgment on the Labor Law § 240 (1) cause of action was granted in favor of the defendant. Additionally, the court granted summary judgment to Mark IV Construction Co., the general contractor, on its third-party complaint against the decedent’s employer, as the general contractor did not direct, control, or supervise the employer's work.

Labor Law § 240 (1)Construction AccidentWall CollapseFalling Object DoctrineElevation-Related RiskSummary JudgmentThird-Party ComplaintGeneral Contractor LiabilityEmployer LiabilityWorker Injury
References
10
Case No. MISSING
Regular Panel Decision

Garner v. Behrman Bros. IV, LLC

This case involves plaintiffs Winifred Marie Garner and Sophia Theus, who filed a putative class action against Behrman Brothers IV, LLC and Behrman Brothers Management Corp. (collectively, "Behrman"). Plaintiffs seek unpaid wages and benefits under the Worker Adjustment and Retraining Notification Act (WARN Act), alleging that Behrman, as a "single employer" with Atherotech, Inc., failed to provide 60 days' notice before mass layoffs in February 2016 when Atherotech facilities closed. Behrman moved to dismiss the First Amended Complaint under Federal Rules of Civil Procedure 12(b)(6) and 12(b)(7) and to drop defendants under Rule 21. The Court denied all of Behrman's motions, finding that the plaintiffs sufficiently alleged Behrman's liability under the WARN Act based on factors like common ownership, common directors/officers, unity of personnel policies, and de facto control.

WARN ActClass ActionMass LayoffPlant ClosingUnpaid WagesEmployee BenefitsCorporate LiabilitySingle Employer DoctrineMotion to DismissFederal Rules of Civil Procedure 12(b)(6)
References
30
Case No. 518427
Regular Panel Decision
Nov 20, 2014

CorreavAnderson

Leeanne M. Correa, an exercise rider, was injured by an anvil falling from a co-worker's, Robert A. Anderson IV's, vehicle while borrowing a hat during employment. She and her husband filed a negligence action against Anderson. The Supreme Court dismissed the complaint, ruling it was barred by the exclusivity provisions of Workers' Compensation Law § 29 (6), as both were co-employees and the injury occurred during employment, for which plaintiff received benefits. The Appellate Division affirmed, holding that Anderson's act of lending a hat, even with the unrelated anvil, was within the scope of employment, thus triggering the exclusivity provisions of the Workers' Compensation Law and barring the negligence claim.

Co-employee negligenceWorkers' Compensation Law exclusivityScope of employmentPersonal injury claimSummary judgment dismissalAppellate reviewWorkplace incidentHorse racing industryNew York lawAnvil accident
References
11
Case No. ADJ10306129
Regular
Dec 22, 2016

MICHAEL LAMBERT vs. STATE OF CALIFORNIA, DEPARTMENT OF FORESTRY REGION IV, STATE COMPENSATION INSURANCE FUND/STATE CONTRACT SERVICES

The Workers' Compensation Appeals Board dismissed the petition for reconsideration filed by the State of California, Department of Forestry Region IV and State Compensation Insurance Fund. The Board found the petition was untimely as it was filed on October 24, 2016, three days after the jurisdictional deadline of October 21, 2016. This deadline was calculated based on the service of the original decision by mail on September 26, 2016. The Board reiterated that filing by mail is insufficient; the petition must be received by the Board within the statutory timeframe.

Workers' Compensation Appeals BoardPetition for Reconsiderationuntimelydismissalservice by mailjurisdictionalOpinion and Order Granting Petition for ReconsiderationDecision After Reconsiderationuntimely filingOctober 21
References
4
Case No. ADJ9473303
Regular
Oct 30, 2017

PEDRO SOTELO vs. TRI-STATE EMPLOYMENT SERVICES, INC. dba PIRATE STAFFING, INC., CALIFORNIA INSURANCE GUARANTEE ASSOCIATION FOR LUMBERMEN'S UNDERWRITING ALLIANCE in liquidation, SEDGWICK

The Appeals Board granted reconsideration, finding the Agreed Medical Evaluator's (AME) reports lacked substantial evidence for permanent disability and apportionment due to unexplained DRE Category II ratings. However, the Board amended the order to not strike the AME's reports entirely, as good cause was not shown for their exclusion. The case is returned to the trial level for further development of the record regarding permanent disability and apportionment, potentially through a new AME or QME.

Workers' Compensation Appeals BoardPetition for ReconsiderationFindings and AwardAgreed Medical Evaluator (AME)Permanent DisabilityApportionmentSubstantial EvidenceDRE Category IIAMA GuidesWhole Person Impairment (WPI)
References
9
Case No. ADJ7669411
Regular
Jul 23, 2013

OSCAR HUERTA vs. HIGGINS & LOVETT CONSTRUCTION, TOWER SELECT INSURANCE CO.

This case involves a workers' compensation claim for a laborer injured on November 2, 2010, to his neck and back. The defendant disputes the finding of 51% permanent disability, primarily arguing that the panel qualified medical evaluator's (PQME) report was not substantial evidence. The Appeals Board has granted reconsideration to further review the PQME's lumbar impairment rating, specifically questioning whether "non-verifiable radicular complaints" sufficiently supported the DRE Category III rating. The Board has rescinded the prior award and returned the case for further development of the record.

Occupational Group 480Panel Qualified Medical Evaluator (PQME)Dr. DawdyDRE Category IIIRadiculopathyLumbar ImpairmentSubstantial Medical EvidenceFurther Development of the RecordAmended Findings and AwardLumbar Spine
References
6
Case No. MISSING
Regular Panel Decision

Bittencourt v. Ferrara Bakery & Café Inc.

Plaintiff Jucialaine Bittencourt filed an action against Ferrara Bakery & Café, Inc. and related parties, alleging violations of the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL) concerning unpaid minimum wages and tip credit notice failures. She sought conditional collective action certification. The court, presided over by U.S. Magistrate Judge James C. Francis IV, granted the motion in part, specifically certifying a collective action for waitstaff. The decision was based on a sufficient factual showing, including affidavits from Bittencourt and another waiter, Czako Zsolt, detailing common unlawful wage policies. However, the motion was denied for other employee categories due to insufficient factual detail. The court also provided directives for the notice to potential opt-in plaintiffs, including the notice period and language modifications.

FLSANYLLWage ViolationCollective ActionConditional CertificationMinimum WageTip CreditWaitstaffRestaurant IndustryEmployment Law
References
50
Case No. MISSING
Regular Panel Decision

Deleon v. New York City Sanitation Department

DeGrasse, J., dissents from the majority's premise, arguing that the reckless disregard standard of care set forth under Vehicle and Traffic Law § 1103 (b) applies to the case. The case involves a 2010 collision between a plaintiff's vehicle and a mechanical street sweeper operated by defendant Robert P. Falcaro, a city sanitation worker. The dissent asserts that Rules of the City of New York (34 RCNY) § 4-02 (d) (1) (iv) incorporated this standard for highway workers, a category Falcaro falls under. It refutes the majority's interpretation of 34 RCNY § 4-02 (d) (1) (iii), stating it provides no standard of care and thus does not contradict the application of the reckless disregard standard. The dissenting judge concludes that summary judgment was properly granted by the court below, as there was no evidence of Falcaro's intentional conduct committed in disregard of a known or obvious risk of highly probable harm, and would affirm the denial of plaintiff’s motion for summary judgment and the granting of defendants’ cross motion.

Reckless disregardVehicle and Traffic LawStreet sweeperHighway workerSummary judgmentMunicipal lawNew York City RulesStandard of careDissentCollision
References
6
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