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

Case No. ADJ4713940
Regular
Apr 04, 2018

JOEY SHEN vs. MOLINA HEALTHCARE, INC.; AMERICAN HOME ASSURANCE, adjusted by CHARTIS

The Workers' Compensation Appeals Board dismissed Joey Shen's petition for reconsideration because it was untimely. The petition was filed on August 25, 2016, which was two days after the deadline of August 23, 2016, for filing after service by mail on July 29, 2016. Furthermore, the Board found that the underlying decision was not a "final" order as it only addressed intermediate procedural or evidentiary issues, not substantive rights or liabilities. Therefore, the Appeals Board lacked jurisdiction to consider the petition.

Petition for ReconsiderationUntimely FilingJurisdictional Time LimitFinal OrderSubstantive RightThreshold IssueInterlocutory DecisionProcedural IssueEvidentiary IssueWCAB
References
10
Case No. ADJ2825571 (LBO 0359176)
Regular
Mar 19, 2012

RONALD METSKER (dec.); KIMBERLY METSKER (dec.), JEREMY DIXON, ET AL. vs. DOUBLETREE CLUB HOTEL; CALIFORNIA INDEMNITY INSURANCE CO.

This order denies a petition for reconsideration in the case of *Metsker (dec.) et al. v. Doubletree Club Hotel*. The Workers' Compensation Appeals Board (WCAB) reviewed the petition and the administrative law judge's report. Finding the judge's reasoning sound and incorporated into their decision, the WCAB denied the reconsideration. The specific grounds for the original decision and the reasons for denial are detailed in the judge's report.

Workers' Compensation Appeals BoardPetition for ReconsiderationWorkers' Compensation Administrative Law JudgeDenying ReconsiderationRonald MetskerKimberly MetskerJeremy DixonDoubletree Club HotelCalifornia Indemnity Insurance Co.ADJ2825571
References
0
Case No. 2016 NY Slip Op 07089 [143 AD3d 647]
Regular Panel Decision
Oct 27, 2016

Smith v. Extell West 45th Street LLC

In this case, Darrell Smith was injured while riding an elevator. The Supreme Court, New York County, dismissed his Labor Law § 240 (1) claim and his Labor Law § 241 (6) claim predicated on Industrial Code § 23-1.7. On appeal, the Appellate Division, First Department, affirmed the dismissal of the Labor Law § 240 (1) claim, determining that a passenger elevator is not a safety device under the statute. However, the court found an error in dismissing the Labor Law § 241 (6) claim related to Industrial Code § 23-1.7 (e), as there was sufficient allegation of debris causing the fall. Consequently, the Appellate Division modified the order to reinstate that portion of the Labor Law § 241 (6) claim and otherwise affirmed the decision.

Labor LawIndustrial CodeElevator AccidentConstruction Worker InjurySafety DevicePremises LiabilityDebris HazardAppellate ReviewMotion to DismissPersonal Injury
References
5
Case No. 2016 NY Slip Op 02986 [138 AD3d 981]
Regular Panel Decision
Apr 20, 2016

Vitale v. Astoria Energy II, LLC

Daniel Vitale, a surveyor, was injured when his leg fell through an opening in a rebar grid at a construction site owned by Astoria Energy II, LLC, and managed by SNC-Lavalin Constructors, Inc. Vitale and his wife sued, alleging violations of Labor Law §§ 240(1), 241(6) (predicated on 12 NYCRR 23-1.7[b]), and 200. The Supreme Court, Queens County, denied the plaintiffs' motion for summary judgment and granted the defendants' cross-motion regarding Labor Law §§ 240(1) and 241(6), while denying the remainder of the cross-motion as untimely. The Appellate Division, Second Department, affirmed the Supreme Court's order. The court found that the rebar grid openings did not constitute an elevation-related hazard under Labor Law § 240(1) or hazardous openings under 12 NYCRR 23-1.7(b) because they were too small to permit a complete fall through. The denial of the remaining part of the defendants' cross-motion due to untimeliness was also upheld.

Personal InjuryConstruction AccidentLabor Law § 240(1)Labor Law § 241(6)12 NYCRR 23-1.7(b)Summary JudgmentAppellate ReviewHazardous OpeningsElevation-Related HazardTimeliness
References
10
Case No. ADJ10286078
Regular
Aug 03, 2018

DOROTHY VARELLAS vs. SAN FRANCISCO UNIFIED SCHOOL DISTRICT

This case involves a workers' compensation claim where the defendant sought reconsideration of a prior award concerning the applicant's temporary total disability (TTD) periods. The appeals board granted reconsideration to clarify the TTD periods. Ultimately, the Board affirmed the original award but amended it to establish TTD from May 31, 2016, to July 21, 2016, and again from February 23, 2017, to May 9, 2017, with corresponding permanent and stationary dates. The decision addressed arguments regarding the timeliness and verification of the petition for reconsideration.

Permanent and stationary dateTemporary total disabilityPetition for reconsiderationAgreed Medical Examiner (AME)Treating physicianMedical evidenceDeposition testimonyWCJWorkers' Compensation Appeals Board (WCAB)Low back injury
References
6
Case No. 2021 NY Slip Op 03351
Regular Panel Decision
May 27, 2021

Matter of Town of Southampton v. New York State Dept. of Envtl. Conservation

This case involves appeals stemming from a CPLR article 78 proceeding where the Town of Southampton and other petitioners challenged the New York State Department of Environmental Conservation's (DEC) decision to grant Mined Land Reclamation permits to Sand Land Corporation. The permits allowed for the vertical expansion of an existing sand and gravel mine in Suffolk County, an area with a sole source aquifer and local zoning prohibiting mining. The Supreme Court had denied the County of Suffolk's intervention motion and dismissed the petitioners' application. The Appellate Division affirmed the denial of intervention but reversed the dismissal, holding that ECL 23-2703 (3) applies to all mining permit applications in protected areas where local zoning prohibits mining. Consequently, DEC's issuance of the permits was deemed arbitrary and capricious, leading to their annulment.

Environmental LawMining PermitsZoning OrdinancesSole Source AquiferState Environmental Quality Review Act (SEQRA)Mined Land Reclamation LawPrior Nonconforming UseAdministrative LawAppellate ReviewStatutory Interpretation
References
32
Case No. CV-23-1738
Regular Panel Decision
Jun 13, 2024

In the Matter of the Claim of Aesoon So

The claimant appealed a Workers' Compensation Board decision that denied review of a Workers' Compensation Law Judge's ruling disallowing claims for COVID-19 benefits for her deceased husband. The Board denied review because the claimant's counsel used an outdated version of form RB-89. The Appellate Division found Workers' Compensation Law § 23-a (1) inapplicable as the application was filed before its effective date. However, the court determined that the Board abused its discretion in denying review, given the minimal difference between the form versions and the lack of demonstrated prejudice. The decision was reversed, and the matter was remitted to the Workers' Compensation Board for further proceedings.

Workers' CompensationCOVID-19 ClaimAppellate ReviewProcedural ErrorForm RB-89Discretionary DenialStatutory InterpretationTimelinessDeceased EmployeeCausal Connection
References
8
Case No. CV-23-1921
Regular Panel Decision
Dec 12, 2024

In the Matter of the Claim of Brian Giesselmann

Claimant Brian Giesselmann appealed two decisions from the Workers' Compensation Board. The Board found that Giesselmann violated Workers' Compensation Law § 114-a by misrepresenting his physical condition during a permanency evaluation for a right shoulder injury sustained in June 2016. Video surveillance and medical expert testimony from Dr. Daniel Bowman indicated discrepancies between Giesselmann's reported limitations and his actual physical activities. The Board affirmed the WCLJ's finding of a mandatory penalty of forfeiture of any SLU award and a discretionary penalty of permanent disqualification from future indemnity benefits due to egregious misrepresentations. The Appellate Division affirmed the Board's decisions, finding substantial evidence to support the violation and the imposed penalties.

Workers' CompensationFraudMisrepresentationSchedule Loss of UseIndemnity BenefitsDisqualificationMedical ExaminationSubstantial EvidenceAppellate ReviewWitness Credibility
References
10
Case No. CV-23-1921
Regular Panel Decision
Dec 12, 2024

Matter of Giesselmann v. Rotterdam Steel, LLC

Claimant Brian Giesselmann appealed two decisions by the Workers' Compensation Board. The Board found Giesselmann violated Workers' Compensation Law § 114-a by misrepresenting his physical condition during a permanency evaluation for a right shoulder injury sustained in 2016. Despite his treating physician, Daniel Bowman, initially assessing a 70% schedule loss of use (SLU), video surveillance depicted Giesselmann performing activities inconsistent with his reported limitations. The Workers' Compensation Law Judge (WCLJ) and subsequently the Board concluded that Giesselmann intentionally made material misrepresentations to influence his claim, imposing mandatory and discretionary penalties, including permanent disqualification from future indemnity benefits. The Appellate Division affirmed both Board decisions, determining that substantial evidence supported the finding of a violation and the appropriateness of the permanent disqualification.

Workers' Compensation LawFraudMisrepresentationSchedule Loss of Use (SLU)Indemnity BenefitsMedical EvaluationClaimant CredibilitySubstantial EvidenceAppellate DivisionPermanent Disqualification
References
9
Case No. CV-23-2242
Regular Panel Decision
May 29, 2025

In the Matter of the Claim of Miguel Juncal

Claimant Miguel Juncal suffered physical injuries from a fall at work in November 2021 and was awarded temporary total disability benefits. The employer and its carrier, Maspeth Remodeling Co. et al., appealed a Workers' Compensation Board decision that denied their request to retroactively reduce Juncal's benefits. The carrier sought a reduction based on an independent medical examination from August 2022, arguing that the reduction should be effective from the IME date or the RFA-2 filing date. The Board affirmed the WCLJ's decision, holding that benefits should continue at the temporary total disability rate until the March 2023 hearing, interpreting 12 NYCRR 300.23 (b) (2) as directory rather than mandatory regarding the 20-day hearing timeframe. The Appellate Division affirmed the Board's decision, finding no abuse of discretion.

Workers' CompensationTemporary Disability BenefitsBenefit ReductionIndependent Medical ExaminationPsychiatric InjuriesOrthopedic InjuriesAdministrative LawRegulatory InterpretationAppellate ReviewWorkers' Compensation Board
References
5
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