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

Case No. 2021 NY Slip Op 04527 [196 AD3d 988]
Regular Panel Decision
Jul 22, 2021

Matter of Cardona v. DRG Constr. LLC

In 2018, claimant Alex Adonias Pinto Cardona was injured during construction work, leading to a workers' compensation claim. A dispute arose regarding his employment status with DRG Construction LLC, a subcontractor, and Avitus Inc., a professional employer organization (PEO) providing payroll and HR services to DRG. The Workers' Compensation Board initially found Avitus to be a proper employer and American Zurich Insurance Company, Avitus's insurer, to be the responsible carrier for benefits. Avitus and American Zurich appealed this decision. The Appellate Division affirmed the Board's determination, concluding that substantial evidence supported the employer-employee relationship between DRG and the claimant and that Avitus and American Zurich failed to demonstrate that the claimant was not covered by the insurance policy.

Employer-Employee RelationshipProfessional Employer Organization (PEO)Insurance CoverageSubcontractor LiabilityAppellate ReviewConstruction InjuryPayroll ServicesHuman Resources OutsourcingAdministrative ReviewWorkers' Compensation Board Decision
References
6
Case No. MISSING
Regular Panel Decision
Jun 01, 2009

People v. Nunn

This case addresses whether a court's discretion to deem a misdemeanor complaint charging a drug offense as an information, without a field test or laboratory analysis, violates a defendant's due process rights. The court distinguishes People v Kalin and Matter of Jahron S., applying the three-factor test from Mathews v Eldridge. It concludes that the substantial private interest in physical liberty and the risk of erroneous deprivation necessitate a laboratory report or field test in most drug-related cases, imposing minimal burden on the prosecution. Specifically, for defendant Mr. Nunn, the misdemeanor complaint was deemed an information on June 1, 2009, after the certified laboratory analysis was filed.

Due ProcessCriminal ProcedureMisdemeanorControlled SubstanceDrug PossessionMisdemeanor InformationMisdemeanor ComplaintPrima Facie CaseLaboratory AnalysisField Test
References
21
Case No. ADJ2110739 (MON 0313927)
Regular
Oct 01, 2010

Rosalind Eskridge (Vallery) vs. TARGET STORES, SEDGWICK CLAIMS MANAGEMENT SERVICES, INC.

This case returns to the trial level for a comprehensive re-analysis of applicant's permanent disability rating, specifically focusing on the Diminished Future Earning Capacity (DFEC) adjustment factor. The Board rescinded the prior award because the judge's decision did not fully adhere to the *Ogilvie* en banc decisions, which mandate a specific four-step analysis for rebutting the DFEC. The judge must now conduct a complete *Ogilvie* analysis, potentially developing the record further, to determine if the applicant's demonstrated earning loss and other relevant factors, including *Montana* factors, justify an individualized DFEC adjustment over the scheduled rating. The applicant bears the burden of proving that her evidence substantially overcomes the prima facie validity of the scheduled DFEC.

Workers' Compensation Appeals BoardDiminished Future Earning CapacityDFECPermanent Disability Rating Schedule2005 PDRSOgilvie analysisAgreed Medical ExaminerDisability Evaluation UnitDEUAgreed Medical Examiner
References
6
Case No. SJO 0264010
Regular
Feb 11, 2008

CIPRIANO LOMOTAN vs. GE INFRASTUCTURE SECURITY, MATRIX ABSENCE MANAGEMENT SERVICES

In *Lomotan v. GE Infrastructure Security*, the Appeals Board vacated a judge's notice of intention to impose sanctions and a related job analysis order. This decision followed a Commissioner's Conference where the parties reached a compromise and release resolving all issues, including vocational rehabilitation benefits. The Board found no basis for sanctions and determined the job analysis issue was moot due to the settlement.

RemovalAppeals BoardSupplemental OrderSanctionsWCJCommissioner's ConferenceCompromise and ReleaseVocational RehabilitationSupplemental Job Displacement BenefitsJob Analysis
References
0
Case No. ADJ3864552 (LAO 0788138)
Regular
Jan 03, 2011

ANTONIETA GUERRERO vs. WELLPOINT HEALTH NETWORK, INC., ZURICH LOS ANGELES, CALIFORNIA INSURANCE GUARANTEE ASSOCIATION For FREMONT In Liquidation

The Workers' Compensation Appeals Board granted reconsideration of a prior award due to insufficient analysis by the WCJ regarding the date(s) of cumulative trauma. The Board found the WCJ's decision lacked specific reference to evidence, particularly on whether multiple or a single period of cumulative trauma applied. The matter was returned to the trial level for further proceedings, a new decision, and adequate analysis of all contentions, including permanent disability and apportionment.

Cumulative traumaOveruse syndromeFibromyalgiaPsyche injuryPermanent total disabilityApportionmentAttorney feesFindings and AwardReconsiderationWCJ
References
7
Case No. ADJ6502802
Regular
Feb 28, 2011

JOSE OLIVEIRA vs. RIVER FRONT APARTMENTS, ILLINOIS MIDWEST INSURANCE AGENCY, PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE COMPANY

This case concerns a maintenance worker's shoulder injury sustained on June 8, 2007. The workers' compensation judge awarded 39% permanent disability based on a qualified medical evaluator's analysis. The defendant argued this analysis, which applied the hernia chapter of the AMA Guides, was flawed and that impairment should be assessed using the upper extremity chapter. After reconsideration, the Appeals Board affirmed the original Findings and Award, adopting the judge's reasoning.

Workers' Compensation Appeals BoardPetition for Reconsiderationindustrial injurymaintenance workerleft shoulderpermanent disabilitypanel qualified medical evaluatorAMA Guides to the Evaluation of Permanent Impairmenthernia chapterWhole Person Impairment
References
0
Case No. MON 0342844
Regular
Aug 20, 2007

DANNY HOPKINS vs. MCMAHAN'S FURNITURE STORES, ZENITH INSURANCE COMPANY

The Workers' Compensation Appeals Board granted reconsideration of a decision that denied a psychiatric injury claim. The Board found the original judge did not properly apply the *Rolda v. Pitney Bowes* analysis to determine if a lawful personnel action was the substantial cause of the injury. The case is returned to the trial level for further analysis under *Rolda* and to allow for further development of the medical record, specifically regarding whether personnel actions were a substantial cause of the alleged injury.

Workers' Compensation Appeals BoardPsychiatric injuryLawful personnel actionRolda v. Pitney BowesInc.Labor Code section 3208.3Good faithNon-discriminatoryDemotionPredominant cause
References
3
Case No. ADJ3337880
Regular
Sep 17, 2009

ARACELI SANTOS vs. MARIN CHIROPRACTIC, INC.

The Workers' Compensation Appeals Board granted reconsideration of a prior decision denying applicant Araceli Santos' claim for industrial injury. The Board found the original decision's reasoning insufficient for meaningful review, particularly regarding employment status and the analysis of injury evidence. The matter is returned to the trial level for a new decision by the WCJ, who must conduct a proper *Borello* analysis for employment and provide more specific reasoning on the injury claim after reviewing the entire record.

Workers Compensation Appeals BoardFinding and OrderReconsiderationIndustrial InjuryCourse of EmploymentMRI ReportProof of PayrollBorello AnalysisEmployment FactorsMedical Evidence
References
3
Case No. ADJ8645032
Regular
Jan 30, 2019

BONNIE KEEFE vs. CEDARS-SINAI MEDICAL CENTER

The Workers' Compensation Appeals Board (WCAB) granted reconsideration of a prior award concerning Bonnie Keefe's claimed cervical, lumbar, and psychiatric injuries. The WCAB found that while the WCJ properly adjudicated the physical injuries and the expedited hearing was appropriate, the analysis for the psychiatric injury was incomplete. Specifically, the WCAB determined that the WCJ failed to conduct a full *Rolda* analysis, which is required to assess claims of psychiatric injury stemming from good faith personnel actions. Therefore, the issue of psychiatric injury is deferred for further proceedings at the trial level.

Petition for ReconsiderationFindings of Fact and Awardscervical spinelumbar spinepsychiatric systemtemporary total disabilityRolda v. Pitney Bowesexpedited hearinggood faith personnel actionsadministrative law judge
References
4
Case No. ADJ460837 (VNO 0490198)
Regular
Nov 17, 2008

ROSARIO TRUJILLO, vs. ADECCO STAFFING; CSSC,

The Workers' Compensation Appeals Board denied the defendant's petition for reconsideration of an Order Approving Compromise and Release, which settled applicant Rosario Trujillo's claims for $\$30,000$. The defendant sought to set aside the settlement, arguing a Medicare set-aside analysis used for the settlement was no longer valid at the time of approval. The Board found the defendant made an insufficient showing to set aside the settlement, noting no changed condition had been demonstrated to invalidate the analysis, and that the defendant failed to establish fraud, mutual mistake, duress, or undue influence.

WORKERS' COMPENSATION APPEALS BOARDPetition for ReconsiderationCompromise and ReleaseOrder Approving Compromise and ReleaseWCJMedicare Set-Aside AnalysisCoventry Workers' Compensation Servicesgood causefraudmutual mistake of fact
References
10
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