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

Case No. 73 Civ. 3058
Regular Panel Decision

Patterson v. Newspaper & Mail Deliverers' Union

This opinion and order addresses a long-standing civil rights action concerning alleged discrimination against minorities in the newspaper delivery industry by the Newspaper and Mail Deliverers’ Union (NMDU) and various publishers. The court reviews and affirms a determination by Administrator William S. Ellis regarding “Claim 186,” which involved violations of a 1974 Consent Decree, specifically concerning hiring procedures for Group III shapers at The New York Times. The Administrator found that the Times and NMDU violated the Settlement Agreement by unilaterally deviating from a 3/2 minority hiring ratio, implementing discriminatory application procedures, and engaging in intentional racial discrimination in offlist hiring and Group III list placement. The court also affirms the Administrator's conclusions that certain non-minority intervenors lacked standing and that back pay and attorneys' fees are appropriate remedies under the Settlement Agreement, which is deemed compliant with Title VII. The case is remanded to the Administrator for further evidentiary hearings to determine specific back pay amounts and the relative liability of The Times and the NMDU.

Employment DiscriminationAffirmative ActionConsent DecreeTitle VIIRacial DiscriminationHiring PracticesUnion PracticesAdministrator ReviewBack PayAttorneys' Fees
References
7
Case No. MISSING
Regular Panel Decision

Council of City v. Department of Homeless Services

The New York City Department of Homeless Services (DHS) implemented a new Eligibility Procedure for Temporary Housing Assistance (THA) applicants. The Council of the City of New York (City Council) filed a declaratory judgment action, asserting DHS failed to comply with the notice and hearing requirements of the New York City Administrative Procedure Act (CAPA). The court affirmed lower court rulings, determining that DHS's procedure constitutes a 'rule' under CAPA, requiring public notice and hearings. The court rejected DHS's arguments that the procedure involved sufficient discretion or fell under an exemption, emphasizing the mandatory nature of the procedure and its substantial impact on eligibility determinations. Consequently, the Eligibility Procedure is unenforceable until DHS adheres to CAPA's procedural mandates.

Administrative LawRulemakingDeclaratory JudgmentHomeless ServicesTemporary Housing AssistanceNew York City CharterCAPASAPAAgency DiscretionProcedural Requirements
References
14
Case No. MISSING
Regular Panel Decision

Claim of Spyhalsky v. Cross Construction

This case of first impression examines whether Workers' Compensation Law § 13 (a) mandates a workers’ compensation carrier to cover sperm extraction and intrauterine insemination for an injured worker who cannot procreate due to a causally related injury. The claimant sustained a work-related back injury in 1995, leading to surgery and consequential retrograde ejaculation. When conservative treatments failed, his urologists recommended artificial insemination to achieve pregnancy. The Workers’ Compensation Board authorized these procedures, ruling that the inability to naturally father a child constituted a compensable injury requiring treatment. The court affirmed this decision, emphasizing a liberal interpretation of the Workers' Compensation Law to meet its humanitarian objectives and asserting that coverage for restoring lost bodily functions extends to procreative capabilities.

Workers' Compensation LawMedical Treatment CoverageRetrograde EjaculationIntrauterine InseminationProcreation RightsCompensable InjuryBodily Function LossStatutory InterpretationSperm ExtractionMedical Necessity
References
14
Case No. MISSING
Regular Panel Decision
Mar 26, 1998

In Re Bagel Bros. Bakery & Deli, Inc.

This order addresses whether Federal Rule of Bankruptcy Procedure 1014(b) imposes an automatic stay on proceedings in a subsequently-filed bankruptcy case. The case involves three Chapter 11 cases of Bagel Bros. Maple, Inc. and Bagel Bros. Deli & Bakery, Inc. in the Western District of New York, which are related to earlier Chapter 11 cases of MBC in the District of New Jersey. MBC filed a motion in New Jersey seeking to transfer venue and requested that the New York court automatically stay its proceedings based on Rule 1014(b). Bankruptcy Judge Michael J. Kaplan ruled that Rule 1014(b) does not constitute an automatic or self-executing stay upon the mere filing of a motion. Instead, a judicial determination and order from the first-filed court (District of New Jersey) are required to impose such a stay, ensuring that substantive rights are not abridged and allowing for judicial discretion in emergency matters. Therefore, the proceedings in the Western District of New York are not automatically stayed.

Bankruptcy ProcedureAutomatic StayFederal Rule of Bankruptcy Procedure 1014(b)Venue TransferChapter 11 ReorganizationInter-district BankruptcyJudicial InterventionSubstantive RightsFranchise AgreementsCash Collateral Disputes
References
12
Case No. ADJ9505821
Regular
Jan 12, 2015

ROUBIK MIRZAIE vs. AUTONATION, ACE USA

The Workers' Compensation Appeals Board (WCAB) granted reconsideration of a decision finding applicant's injury compensable. Defendant sought reconsideration arguing the applicant was on a material deviation from employment. However, the WCAB is also issuing a notice of intention to sanction the defendant and their attorneys for presenting facts not in evidence and failing to comply with procedural rules. Sanctions up to $500.00 may be imposed for these bad-faith tactics.

WCABReconsiderationSanctionsLabor Code § 5813Appeals Board Rule 10561Material DeviationAOE/COEWCJ CredibilityBad-Faith ActionsFrivolous Tactics
References
1
Case No. ADJ7277939
Regular
Jan 11, 2011

MISUK BRIANS vs. WHOLE FOODS MARKET, ACE AMERICAN INSURANCE CO., GALLAGHER BASSETT SERVICES, INC.

In this Workers' Compensation Appeals Board case, the defendant sought removal after the judge took a mandatory settlement conference off calendar and demanded further responses. The Board granted removal, rescinding the judge's order and criticizing the procedural deviation from policy. The Board found the applicant's stipulations adequate despite the defendant's withdrawal of agreement. The Board will approve the stipulations unless either party objects in writing within twenty days.

Petition for RemovalMandatory Settlement ConferenceStipulations with Request for AwardOrder Taking MSC Off CalendarWorkers' Compensation Appeals BoardWCJLabor Code section 5502(a)Policy and Procedure Manual section 1.91(C)(3)Status ConferenceAdequacy
References
0
Case No. ADJ9298865
Regular
Oct 14, 2019

Oscar Scagliotti vs. Elmore Toyota

This case concerns Oscar Scagliotti's claim of retaliatory termination by Elmore Toyota in violation of Labor Code section 132a. The Appeals Board rescinded the prior decision, finding that Scagliotti established a prima facie case by showing his termination occurred immediately after he left work for industrial injury treatment. The Board found Elmore Toyota's stated reason of leaving without permission was not credible and contradicted by the close temporal proximity to his injury notification and deviation from standard procedures. Compensation and penalties are deferred pending further proceedings at the trial level.

Labor Code 132aRetaliationDiscriminationIndustrial InjuryPrima Facie ClaimTerminationReconsiderationWorkers' Compensation Appeals BoardMedical TreatmentDisadvantageous Treatment
References
24
Case No. ADJ6788177
Regular
May 13, 2015

GREGORY GREENE vs. CENTRAL PARKING SYSTEMS, SEDGWICK CMS

In this workers' compensation case, the Appeals Board denied the defendant's petition for reconsideration. The defendant challenged a $75\%$ permanent disability award, arguing the primary treating physician's rating improperly combined various lower extremity impairments, violating the AMA Guides. The Board found the WCJ's reliance on the physician's opinion was supported by substantial evidence, emphasizing the need for accurate, not mechanical, application of the Guides. A dissenting opinion argued the rating was not substantial evidence as it failed to follow proper *Almaraz-Guzman* procedures for deviating from strict AMA Guides application and advocated for remand.

Workers' Compensation Appeals BoardAmended Findings and AwardPetition for Reconsiderationindustrial injurypermanent disabilitylife pensionLabor Code section 4658 (d) increasesubstantial medical evidenceLabor Code section 4660 (b)(1)AMA Guides
References
4
Case No. ADJ8833300, ADJ8833298
Regular
Oct 20, 2019

RICHARD FEIGEL PEREZ vs. CITY OF OAKLAND, JT-2 INTEGRATED RESOURCES

The Workers' Compensation Appeals Board rescinded a prior decision and returned the case to the trial level for further proceedings. The applicant alleged the defendant City of Oakland violated Labor Code section 132a by discriminating against him when returning to work after an industrial injury. The Board found the record unclear as to whether the defendant deviated from its own return-to-work procedures as outlined in the Memorandum of Understanding, specifically regarding the review of treating physician reports and the scheduling of fitness-for-duty tests. Further development of the record is needed to determine if a prima facie case of discrimination was established and if the defendant had legitimate business reasons for its actions.

Labor Code 132aRetaliationDiscriminationFitness for Duty TestReturn to WorkMemorandum of Understanding (MOU)Treating PhysicianAgreed Medical Evaluator (AME)Qualified Medical Evaluator (QME)WCAB
References
0
Case No. ADJ7437447
Regular
Jul 31, 2019

EHSAN ALNIMRI vs. SOUTHWEST AIRLINES, ACE INSURANCE COMPANY

This case concerns an employer's alleged discrimination against an injured worker in violation of Labor Code section 132a. The applicant was dismissed from his ramp agent position after conflicting medical reports regarding his work restrictions arose following a back injury. The Workers' Compensation Appeals Board affirmed the administrative law judge's decision, finding that the employer discriminated against the applicant by failing to follow its standard procedure for resolving such medical conflicts. The employer's deviation from its usual practice, including failing to refer the applicant for a company physician's evaluation, constituted unlawful disadvantageous treatment due to his industrial injury.

Workers' Compensation Appeals BoardLabor Code section 132aDiscriminationReconsiderationFindings Award and OrdersPermanent Work RestrictionsPQME ReportTreating Physician ReportDismissalWork Status Conflict
References
0
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