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

Case No. ADJ652088 (VNO 0535069) ADJ247491 (VNO 0535058) ADJ7902978
Regular
Nov 17, 2014

NORMA JOVEL vs. SISTERS OF THE HOLY NAMES dba RAMONA CONVENT SECONDARY SCHOOL, UNITED STATES FIRE INSURANCE COMPANY

The Workers' Compensation Appeals Board granted reconsideration, affirming the finding that the defendant's utilization review (UR) decision denying knee surgery was defective due to missing documentation. However, the Board rescinded the administrative law judge's order to return the request to UR. Instead, the Board awarded the requested knee surgery and related treatment, finding substantial medical evidence in the record supported its medical necessity. This decision was based on subsequent case law that allows the Board to decide medical necessity when UR is defective.

Utilization ReviewPetition for ReconsiderationDefective URSubstantial Medical EvidenceAgreed Medical EvaluatorIndependent Medical ReviewMedical NecessityArthroscopic Knee SurgeryDubon IDubon II
References
8
Case No. MISSING
Regular Panel Decision
May 17, 2002

In re the Claim of Kearse

The claimant appealed a decision from the Unemployment Insurance Appeal Board, which upheld its prior ruling that the claimant's request for a hearing was untimely. The claimant had been disqualified from receiving unemployment benefits due to misconduct and charged with an overpayment, but failed to request a review hearing for several months, mistakenly believing her workers' compensation case was related. The Board, upon reconsideration, adhered to its finding that the request was untimely. The Appellate Division affirmed the Board's decision, reiterating that a claimant typically has 30 days to request a hearing unless there is a valid excuse. The court also declined to consider the claimant's belated assertions of post-traumatic stress disorder as a justification for the delay.

Unemployment BenefitsUntimely RequestMisconduct DischargeOverpaymentWorkers' CompensationPost-Traumatic Stress DisorderAppellate ReviewHearing TimelinessAdministrative DecisionNew York Appellate Division
References
4
Case No. MISSING
Regular Panel Decision

Claim of Domanico v. Woodmere Fire District

This case involves an appeal from a decision by the Workers’ Compensation Board, filed April 4, 2005, which denied an employer's request for reimbursement of wages paid to a claimant during a period of disability. The court examined whether a June 24, 2004 notice, issued by the self-insured employer, Woodmere Fire District, containing language about reimbursement, was sufficient as a request under Workers’ Compensation Law § 25 (4) (a). The court found the notice to be sufficient in form. However, a critical issue remained regarding the timeliness of this request; specifically, whether it was filed prior to the compensation award made at the January 7, 2005 hearing. Due to this unresolved issue, the court reversed the Board's decision and remitted the matter for further proceedings to determine the timeliness of the reimbursement request.

Workers' Compensation ReimbursementEmployer Wage ReimbursementDisability WagesTimeliness of Reimbursement RequestWorkers' Compensation LawBoard Decision AppealJudicial ReversalRemittal for Further ProceedingsNew York Workers' CompensationStatutory Interpretation
References
5
Case No. MISSING
Regular Panel Decision

Bland v. Gellman

A claimant had two workers' compensation claims, one managed by the Special Fund for Reopened Cases and the other by Travelers Insurance Company, with liability equally apportioned. The claimant's treating physician requested a variance for aquatic therapy, which both carriers denied. Although a Workers' Compensation Law Judge approved the treatment, the Workers' Compensation Board reversed, asserting that the variance request form (MG-2) was not properly served on the Board and that the review request was untimely. The Appellate Division reversed the Board's decision, finding substantial evidence that the MG-2 form was timely filed with the Board, referencing both claim numbers, and that the request for review of the denial was also timely. The court concluded that the Board's determination lacked substantial evidence and remitted the matter for further proceedings.

Variance RequestAquatic TherapyClaim DenialMG-2 FormTimely FilingAdministrative LawAppellate ReviewSpecial Fund for Reopened CasesTravelers Insurance CompanySubstantial Evidence
References
3
Case No. MISSING
Regular Panel Decision
Oct 12, 2005

Bryan v. Doar

The petitioner, receiving public assistance with her children and niece in Nassau County since 1993, learned her benefits would have been higher if her niece's social security income was not included. She sought a retroactive underpayment adjustment, which the Nassau County Department of Social Services (Agency) failed to provide, leading her to request a fair hearing. Commissioner Robert Doar initially ruled he lacked jurisdiction to review benefits prior to October 29, 2001, due to an untimely fair hearing request based on a defective August 29, 2001 notice. The Supreme Court, Nassau County, annulled Doar's jurisdictional finding for the period prior to October 29, 2001, and remitted the matter for recomputation, finding the Agency's notice was defective as it lacked regulatory authority for including the niece's income, thus tolling the 60-day statute of limitations. This order and judgment was subsequently affirmed on appeal.

Public AssistanceSocial ServicesFair HearingJurisdictionStatute of LimitationsNotice DefectBenefit ComputationAdministrative LawAppellate ReviewUnderpayment
References
6
Case No. MISSING
Regular Panel Decision

Sherman v. A.J. Pegno Construction Corp.

This case involves two separate actions, the "Sherman Action" and the "Alexander Action," that were removed from the Supreme Court of the State of New York, County of New York, to federal court by defendants Ford Motor Co. and General Motors Corp. The plaintiffs, Moses and Leola Sherman, and John Alexander, sought damages for personal injuries allegedly caused by exposure to asbestos-containing materials. Defendants claimed federal jurisdiction based on complete diversity, asserting that a non-diverse defendant, Union Carbide (UC), was fraudulently joined. The Court found a lack of complete diversity at the time of removal and rejected the fraudulent joinder argument against UC, stating that post-removal settlements cannot cure a defective removal. Furthermore, the Alexander Action's removal was deemed procedurally defective due to the lack of consent from International Truck and Engine Corporation. Consequently, the Court granted both plaintiffs' motions to remand their respective actions back to the New York State Supreme Court. The Shermans' request for costs and attorneys' fees was denied, but Alexander's request was granted.

Asbestos exposurePersonal injuryRemoval jurisdictionDiversity jurisdictionFraudulent joinderRemand to state courtSubject matter jurisdictionRule of unanimityAttorneys' feesProduct liability
References
47
Case No. ADJ9539560
Regular
May 14, 2015

OSCAR MELENDEZ vs. B&D UPHOLSTERY, PROCENTURY INSURANCE COMPANY, MIDWEST INSURANCE COMPANY

In this workers' compensation case, the defendant sought to invalidate the applicant's requested QME panel. The defendant argued that the applicant's request was invalid because it was not served on their attorney. The Appeals Board denied the petition for removal, finding that while service on the attorney was required, the defendant's own QME request contained material defects, including misidentifying the treating physician's specialty and the reason for the request. Therefore, the WCJ's finding of the applicant's panel's validity did not cause irreparable harm.

Petition for RemovalQualified Medical EvaluatorQME PanelLabor Code section 4060Compensability examWCAB Rule 10510(b)Service on attorneyRule 31.1(b)Specialty disputeMaterial defects
References
0
Case No. ADJ9755370
Regular
Aug 10, 2017

BERNARDINO GARDEA vs. CITY OF PASADENA

This case concerns the City of Pasadena's request for reconsideration of a Workers' Compensation Appeals Board (WCAB) decision regarding the applicant's occupational group number. The WCJ initially recommended dismissal of the reconsideration petition as untimely. However, the defendant has now requested leave to file a supplemental petition to address issues raised in the WCJ's report. The WCAB has granted the defendant's request to file this supplemental petition. The defendant is ordered to file the supplemental petition within 20 days, either by mail or via EAMS, to avoid rejection.

Workers' Compensation Appeals BoardSupplemental PetitionReconsiderationOccupational Group NumberAdministrative Law JudgePetition for ReconsiderationWCAB Rule 10848Electronic Adjudication Management SystemEAMSCity of Pasadena
References
0
Case No. ADJ7324170, ADJ9797150
Regular
May 10, 2016

Beverly Bolton vs. COUNTY OF SAN BERNARDINO

The Appeals Board granted reconsideration to review the WCJ's finding that the applicant was entitled to requested medical treatment due to the employer's untimely utilization review. The employer argued the request was defective and the review was timely. The Board dismissed the employer's Petition for Removal and, after reconsideration, amended the Findings and Award. The Board affirmed the WCJ's finding that the utilization review was untimely, thus waiving objections to the request, but deferred the issue of medical necessity due to an insufficient record.

Workers Compensation Appeals BoardReconsiderationUtilization ReviewTimelinessRequest for Authorization (RFA)JurisdictionMedical NecessityRemovalAdministrative Law Judge (WCJ)Petition for Removal
References
0
Case No. MISSING
Regular Panel Decision

Claim of Lewis v. Stewart's Marketing Corp.

A claimant sustained serious injuries in 1997 and was awarded workers' compensation benefits. In 2008, a dispute arose regarding the permanency and degree of disability, with conflicting medical reports submitted by the claimant (permanent total disability) and the employer (moderate partial disability). The Workers' Compensation Law Judge denied the employer's request to cross-examine the claimant and his physician, subsequently ruling that the claimant had a permanent total disability. Upon appeal, the Workers’ Compensation Board affirmed this decision. The appellate court reversed the Board's decision, emphasizing that denying the employer's timely request for cross-examination was improper, especially given the conflicting medical evidence, and remitted the matter for further proceedings.

Workers’ CompensationDisability AssessmentPermanent Total DisabilityIndependent Medical ExaminationCross-Examination RightsProcedural Due ProcessConflicting Medical EvidenceRemittalAppellate ReviewBoard Decision Reversal
References
3
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