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

Case No. 2017 NY Slip Op 00959 [147 AD3d 815]
Regular Panel Decision
Feb 08, 2017

Gonsalves v. 35 W. 54 Realty Corp.

The plaintiffs, Andrew Gonsalves and Shahazad M. Rasheed, sustained personal injuries at a construction site managed by Geiger Construction Company, Inc. and owned by 35 W. 54 Realty Corp. when a parapet wall collapsed during the lowering of a power washer. They sued 35 W. 54 Realty Corp. and Perimeter Bridge & Scaffold Co. for Labor Law violations. 35 W. 54 Realty Corp. then initiated third-party actions against Geiger Construction for contribution and common-law indemnification. After a jury found Geiger Construction negligent, the Supreme Court denied Geiger Construction's motions for judgment as a matter of law. The Appellate Division, Second Department, reversed these judgments, concluding that there was no rational basis for the jury to find Geiger Construction negligent, as 35 W. 54 Realty Corp. failed to establish a prima facie case of negligence against them. Consequently, the third-party causes of action against Geiger Construction were dismissed.

Personal InjuryConstruction AccidentLabor LawNegligenceContributionIndemnificationThird-Party ActionAppellate ReviewJudgment as a Matter of LawJury Verdict
References
7
Case No. 2017 NY Slip Op 00956
Regular Panel Decision
Feb 08, 2017

Cacanoski v. 35 Cedar Place Associates, LLC

The plaintiff, Krste Cacanoski, was injured after falling through a skylight during asbestos removal work for 35 Cedar Place Associates, LLC. He commenced an action against 35 Cedar Place Associates, LLC, alleging a violation of Labor Law § 240 (1) for failing to provide adequate safety devices. 35 Cedar Place Associates, LLC, subsequently initiated a third-party action against Cacanoski's employer, Superior Abatement, Inc., seeking contractual indemnification under a subcontract executed after the accident. The Supreme Court denied both the plaintiff's motion for summary judgment on the Labor Law claim and Superior Abatement, Inc.'s motion to dismiss the third-party complaint. On appeal, the Appellate Division, Second Department, reversed the Supreme Court's order with respect to the plaintiff's motion, granting summary judgment on the Labor Law § 240 (1) cause of action, finding that the absence of necessary protection was a proximate cause of the plaintiff's injuries. The court affirmed the denial of Superior Abatement, Inc.'s motion to dismiss the third-party complaint, concluding that a triable issue of fact existed regarding whether the parties intended the indemnification provision to apply retroactively.

Labor Law § 240(1)Personal InjurySummary JudgmentAsbestos RemovalFall from heightSky-lightContractual IndemnificationRetroactive AgreementWorkers' Compensation Law § 11Appellate Division
References
19
Case No. ADJ6779197, ADJ7472140, ADJ7964720
Regular
Feb 27, 2014

ISMAEL NAVARRO vs. CITY OF MONTEBELLO, CORVEL CORPORATION

This case concerns whether an applicant must return to the same Qualified Medical Evaluator (QME) for subsequent injury claims. The defendant argued that under Rule 35.5(e), the applicant should be evaluated by the original QME due to overlapping body parts and parties. The Appeals Board granted removal, intending to hold that the Labor Code does not require return to the same QME for new claims. Furthermore, the Board proposes that Rule 35.5(e)'s requirement to use the same QME for new injuries with the same body parts is inconsistent with the Labor Code and thus invalid. The Board is seeking further input from parties and the Division of Workers' Compensation before issuing a final en banc decision.

Workers' Compensation Appeals BoardRemovalFindings of FactQualified Medical EvaluatorRule 35.5(e)Labor CodeEn Banc DecisionCumulative InjurySpecific InjuryClaim Form
References
19
Case No. ADJ2182506 (SFO 0470932)
Regular
Jun 08, 2010

LARRY CHIAPPELLONE vs. NORCAL/GOLDEN GATE DISPOSAL and RECYCLING COMPANY, JT2 INTEGRATED SERVICES

This case involved a defendant's petition for removal seeking a new Qualified Medical Evaluator (QME) due to alleged delays. The Appeals Board denied the petition, adopting the WCJ's reasoning that Labor Code section 4062.5 and related regulations do not mandate a new QME for untimely supplemental reports. Specifically, regulations address timeframes for initial evaluations, not supplemental ones, and the failure to meet supplemental report deadlines does not necessitate a new QME. Therefore, the WCJ's denial of the defendant's motion was not an abuse of discretion.

Petition for RemovalQualified Medical EvaluatorSupplemental ReportRegulatory TimeframesLabor Code Section 4062.5Administrative Director Rule 38(h)WCJ DiscretionNew Panel QMEMedical Evaluation ProcessReappointment Grounds
References
0
Case No. 2018 NY Slip Op 05301 [163 AD3d 805]
Regular Panel Decision
Jul 18, 2018

Matter of 35 Jackson House Apts. Corp. v. Yaworski

The landlord, 35 Jackson House Apartments Corporation, initiated a summary holdover proceeding against shareholder Monika Yaworski due to unauthorized apartment renovations. A settlement stipulated that Yaworski provide details of licensed workers for inspection and compliance. Despite multiple extensions, Yaworski failed to meet these material terms. Consequently, the Civil Court granted the landlord's motion for a warrant of eviction, a decision subsequently affirmed by the Appellate Term. The Appellate Division, Second Department, further affirmed this outcome, concluding that Yaworski's repeated non-compliance constituted a substantial breach, not a de minimis default.

holdover proceedingstipulation of settlementwarrant of evictionunauthorized renovationslandlord-tenant lawcontractual breachappellate reviewdefault judgmentproperty lawjudicial discretion
References
8
Case No. ADJ7555685
Regular
Apr 02, 2012

RAHUL ROY vs. GALLO SALES COMPANY INC.

This case concerns the admissibility of a Qualified Medical Evaluator's (QME) reports due to alleged violations of Labor Code section 4062.3 and AD Rule 35. The defendant, Gallo Sales Company, Inc., sent medical information and sub rosa films to the QME without timely providing copies or notice of objection rights to the applicant, Rahul Roy. The Workers' Compensation Appeals Board affirmed the finding that the QME's reports were inadmissible due to these ex parte communications, disqualifying the QME. The applicant is entitled to a new QME panel.

PQMEAD Rule 35Ex parte communicationLabor Code section 4062.3Medical informationNon-medical recordsSupplemental reportSub rosa filmsQME panelAdmissibility
References
12
Case No. ADJ10886261
Regular
Nov 14, 2018

LUIS SANDOVAL vs. PRIME TECH CABINETS, INC, SECURITY NATIONAL INSURANCE COMPANY, AMTRUST

The Workers' Compensation Appeals Board granted the defendant's Petition for Removal, rescinded the WCJ's prior order, and returned the case for further proceedings. The original order found violations of Labor Code section 4062.3(b) and California Code of Regulations, title 8, section 35(c), striking the Qualified Medical Evaluator's report. This reversal was based on a subsequent en banc decision in *Suon v. California Dairies* that clarified the interpretation and remedies for violations of section 4062.3(b). The trial judge will reconsider the section 4062.3(b) issue and potentially other previously raised issues concerning the QME's reporting.

Petition for RemovalFindings and OrderQualified Medical EvaluatorMedical ReportingLabor Code section 4062.3(b)California Code of Regulations section 35(c)En Banc DecisionSuon v. California DairiesRescindedReturned to Trial Level
References
1
Case No. ANA 394407
Regular
Feb 01, 2008

DEWAYNE TORRENCE vs. CITY OF LOS ANGELES

The Appeals Board denied the applicant's petition for removal, upholding the WCJ's order for a new Qualified Medical Evaluator (QME) panel. The applicant, previously examined by Dr. Flores as a QME while unrepresented and later treated by him, argued he should not undergo another QME evaluation. However, the Board found that since Dr. Flores also provided treatment, he was disqualified from conducting a subsequent QME evaluation under relevant regulations, necessitating a new panel when parties could not agree on an evaluator.

Petition for RemovalQualified Medical EvaluatorAgreed EvaluatorLabor Code Section 4062.2Labor Code Section 4062.3(j)Industrial Medical Council Rule 11(d)Rule 31(d)Primary Treating PhysicianSecondary PhysicianUnrepresented Employee
References
0
Case No. ADJ12550205
Regular
Apr 06, 2020

OLGA PLASCENCIA vs. ADECCO USA, INC

This case involves a dispute over a Qualified Medical Evaluator (QME) panel request. The applicant sought a chiropractic QME panel, while the defendant later denied liability for certain injuries. The Workers' Compensation Appeals Board (WCAB) rescinded the prior ruling and returned the case to the trial judge. This decision was based on the need to further develop the record regarding the applicant's DWC-1 form filing and the effect of the defendant's partial acceptance of liability on the QME panel process. The WCAB emphasized that the validity of the QME panel needs resolution before further proceedings.

Workers' Compensation Appeals BoardReconsiderationFindings and OrderDelay LetterMedical EvaluationQME PanelChiropracticOrthopedicLabor Code Section 4060Causation Dispute
References
5
Case No. ADJ9491221
Regular
May 23, 2017

JESUS DORANTES vs. DIRITO BROTHERS, INSURANCE CO. OF THE WEST

The Workers' Compensation Appeals Board (WCAB) dismissed the applicant's Petition for Reconsideration and denied his Petition for Removal. The applicant sought a replacement Qualified Medical Evaluator (QME) due to delays in receiving a supplemental report and alleged issues with the existing QME's reporting and deposition response. The WCAB found that the decision regarding the replacement QME was an interlocutory procedural ruling, not a final order from which reconsideration could be taken. Furthermore, the applicant failed to demonstrate substantial prejudice or irreparable harm necessary for removal, and did not meet the criteria for a mandatory replacement QME under the applicable regulations.

QME panelsupplemental reporttimely issuancereplacement QMEAdministrative Director Rule 38Petition for ReconsiderationPetition for RemovalLabor Code § 4062.5Rule 31.5(a)(12)substantial prejudice
References
10
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