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

Case No. ADJ6729105
Regular
Sep 16, 2009

, ## Applicant, vs. , ## Defendant(s).

The Workers' Compensation Appeals Board denied reconsideration of a ruling that utilization review for the applicant's shoulder surgery was timely. The applicant argued she did not receive the denial letter within the required timeframe, but the Board found that the denial was properly sent to the treating physician and carbon-copied to the applicant within the statutory period. The Board clarified that WCAB Rule 10505(d) regarding official address records did not apply at the time of the denial because no claim application was yet filed. Therefore, the carrier's obligation was to communicate the denial in writing within the specified time, which they did.

Workers' Compensation Appeals BoardCadbury SchweppesGallagher Bassett ServicesUtilization ReviewPetition for ReconsiderationApplication for Adjudication of ClaimWCAB Rule 10505(d)Labor Code Section 4610ArthroscopyBiceps Tenodesis
References
0
Case No. MISSING
Regular Panel Decision

Kosakow v. New Rochelle Radiology Associates, P.C.

Nancy Kosakow sued her former employer, New Rochelle Radiology Associates, alleging FMLA violations and wrongful denial of severance pay under ERISA. The court previously found FMLA claims collaterally estopped but remanded the ERISA claim to the Plan Administrator for a determination on severance eligibility. The Administrator denied severance, finding Kosakow not "terminated" and, even if so, not entitled to severance. This court reversed the "not terminated" finding, stating Kosakow was terminated due to a reduction in force. However, the court affirmed the Administrator's denial of severance, concluding that the "where applicable" clause in the Plan gave the Administrator broad discretion and that Kosakow's circumstances did not warrant severance. The court found that the denial was not unreasonable, even when considering a severance payment made to another full-time employee under different circumstances.

ERISASeverance PayFMLATerminationSummary JudgmentDe Novo ReviewPlan Administrator DiscretionEmployee BenefitsReduction in ForcePolicy Manual
References
8
Case No. MISSING
Regular Panel Decision
Dec 11, 2002

Claim of Speer v. Wackenhut Corp.

The claimant sought workers' compensation benefits for mental depression, alleging it resulted from being removed from a security guard position by their employer. The Workers' Compensation Board initially ruled the injury non-compensable under Workers' Compensation Law § 2 (7), deeming it a direct consequence of lawful personnel decisions. The claimant subsequently filed applications for full Board review and reconsideration, both of which were denied by the Board. This appeal concerns the denials of those applications. The court dismissed the appeal from the May 1, 2002 denial as untimely and affirmed the December 11, 2002 denial, finding that the Board did not abuse its discretion by not requiring transcription of oral arguments before rendering its decision.

Workers' CompensationMental DepressionStress-related InjuryPersonnel DecisionsReconsideration DenialFull Board ReviewAppellate ProcedureTimeliness of AppealOral Argument TranscriptionAdministrative Discretion
References
3
Case No. MISSING
Regular Panel Decision
Feb 02, 1984

Krebbeks v. Regan

Petitioner, the widow of a Department of Transportation employee, applied for accidental death benefits after her husband's service-connected death in July 1981. Although her application for accidental death benefits was approved, these benefits were entirely offset by workers' compensation payments, leaving her with no current payments from the State Employees’ Retirement System. Subsequently, petitioner sought a lump-sum ordinary death benefit, which was denied because she was deemed eligible for accidental death benefits, even if offset. This appeal ensued after the denial of her application by a hearing officer and Special Term's concurrence. The court affirmed the denial, citing Retirement and Social Security Law § 60 (a) (3), which states an ordinary death benefit is not payable if an accidental death benefit is payable, with a narrow exception not applicable here.

Accidental Death BenefitsOrdinary Death BenefitsWorkers' Compensation OffsetRetirement and Social Security LawStatutory InterpretationDeath Benefits EligibilityPublic Employee BenefitsAdministrative Law AppealDeath Benefit Offset
References
2
Case No. MISSING
Regular Panel Decision

People v. Clayton

This document presents a dissenting opinion regarding the denial of a defendant's coram nobis application. The defendant, an illiterate 24-year-old farm hand, was convicted of murder in the second degree based on a written confession. The dissent argues that the confession was improperly obtained and its admission constituted reversible error. The defendant was detained for approximately 60 hours, questioned repeatedly without being advised of his rights, and allegedly denied access to an attorney and contact with his mother. Furthermore, his detention as a material witness was deemed illegal since no criminal action was pending at the time. The dissenting judge concluded that the defendant's will was overborne by constant police pressure, rendering the confession involuntary and inadmissible.

Coram NobisInvoluntary ConfessionIllegal DetentionMiranda RightsDue ProcessCriminal ProcedureAppellate ReviewSecond-Degree MurderPolice CoercionMaterial Witness
References
6
Case No. MISSING
Regular Panel Decision
Jan 08, 2002

Claim of Palma v. New York City Department of Corrections

The claimant, a Vietnam veteran and former correction officer, sustained injuries in 1975 and was awarded workers' compensation benefits. His case was later reopened to address consequential posttraumatic stress disorder (PTSD), but a Workers' Compensation Law Judge (WCLJ) and the Board attributed his PTSD to his Vietnam service, not his employment assault. Claimant's subsequent application for a rehearing and/or reopening of the claim, based on new psychiatric reports from 1999 and 2000, was denied by the Board on January 8, 2002. The Board concluded that the claimant failed to demonstrate the medical evidence was unavailable earlier or indicated a change in his psychiatric condition. This appeal challenged the Board's denial of the rehearing application, rather than the underlying PTSD claim. The court affirmed the Board's decision, finding no arbitrary, capricious, or abusive discretion in the denial of the application.

Workers' CompensationAppealRehearingReopening ClaimPosttraumatic Stress Disorder (PTSD)Correction OfficerVietnam VeteranMedical EvidenceAbuse of DiscretionArbitrary and Capricious
References
3
Case No. MISSING
Regular Panel Decision

Associated General Contractors of Texas, Inc. v. City of El Paso

Appellants, identified as Associated Gen. Contractors of Texas, Inc., appealed the denial of their application for a temporary injunction against Appellee, the City of El Paso. The Appellants sought to prevent the Appellee from entering public works contracts, alleging that the City failed to properly ascertain the general prevailing rates of per diem wages for building construction as mandated by Article 5159(a) of the Texas Revised Civil Statutes. The case had been previously reversed and remanded by the appellate court. At the hearing for the temporary injunction, Appellants focused their dispute on building construction wage rates, conceding on highway construction wages. The trial court denied the injunctive relief without stating reasons, and this appellate court affirmed, concluding that the trial court did not abuse its discretion given the conflicting evidence presented and Appellants' failure to demonstrate irreparable injury.

Temporary InjunctionPrevailing Wage RatesPublic Works ContractsAbuse of DiscretionAppellate ReviewIrreparable InjuryStatus QuoBuilding ConstructionTexas Civil StatutesDavis-Bacon Act
References
12
Case No. MISSING
Regular Panel Decision

Malek v. State

The claimant appealed two orders from the Court of Claims denying permission to file a late claim against the State, after sustaining a broken foot during employment. The Court of Claims initially denied the application, citing a 17-month delay that prejudiced the State by hindering investigation and evidence preservation. Despite a motion to renew and reargue, the court maintained its denial. The appellate court affirmed the lower court's decision, emphasizing the lack of reasonable excuse for the delay, the substantial prejudice caused to the State due to vanished evidence, and the claimant's available remedy under Workers’ Compensation Law. The court concluded that all relevant criteria were adequately weighed.

late claimCourt of Claims ActprejudiceinvestigationWorkers' Compensationconstruction accidentevidentiary preservationappellate reviewdelayexcusable delay
References
2
Case No. MISSING
Regular Panel Decision

HLP Properties, LLC v. New York State Department of Environmental Conservation

Petitioners, including HLP Properties, LLC, challenged the New York State Department of Environmental Conservation's (DEC) 2007 denial of their application to enroll a contaminated Manhattan site in the Brownfield Cleanup Program (BCP). The site, formerly a manufactured gas plant, was heavily contaminated with coal tar and other hazardous substances, with petitioners seeking BCP benefits for redevelopment into residential and commercial highrises. DEC justified its denial by applying internal 'guidance factors' that deemed the property not 'idled, abandoned, or underutilized' and its redevelopment not 'complicated by contamination,' citing an existing voluntary cleanup agreement with nonparty Con Edison. The court ruled that DEC's application of these extra-statutory guidance factors constituted an unlawful attempt to legislate, going against the clear legislative intent of the BCPA to encourage voluntary remediation of contaminated sites. Consequently, the court reversed DEC's decision, declaring the property a 'brownfield site' under the statute and ordering its acceptance into the BCP, while denying petitioners' claim for costs and disbursements.

Brownfield Cleanup ProgramEnvironmental Conservation LawCPLR Article 78Administrative Agency OverreachStatutory ConstructionVoluntary RemediationContaminated Land RedevelopmentJudicial Review of Agency ActionEconomic Guidance FactorsLegislative Intent
References
20
Case No. ADJ1812731 (LBO 0352930), ADJ4306876 (LBO 0297758)
Regular
Mar 19, 2014

Applicant vs. Defendant

The Workers' Compensation Appeals Board (WCAB) dismissed the applicant's Petition for Reconsideration. The dismissal was based on the applicant's failure to file proof of service with the petition, a mandatory procedural requirement. Even if the merits were considered, the WCAB would have denied the petition based on the Judge's report. The applicant had sought reconsideration of a denial for a Petition to Reopen and claimed new and further disability.

Workers' Compensation Appeals BoardPetition for ReconsiderationPetition to ReopenFindings and OrderAgreed Medical EvaluatorNew and Further DisabilityTemporary DisabilityBad FaithProof of ServiceDismissal
References
0
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