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

Case No. ADJ7293971 ADJ6454679
Regular
Jul 12, 2011

, MANUEL ORTEGA, vs. , DURA CARPET dba DURA FLOORING; STATE COMPENSATION INSURANCE FUND,

This case involves applicant Manuel Ortega seeking reconsideration of a finding that he was not employed by Dura Carpet. The Appeals Board affirmed the finding of no employment due to the applicant's inconsistent testimony and lack of credible evidence compared to the defendant's witness. Reconsideration was granted solely to clarify that this finding applies to both of Ortega's consolidated applications, ADJ7293971 and ADJ6454679. Ultimately, the applicant takes nothing due to the failure to prove employment.

WCABReconsiderationJoint Finding and OrderCredible TestimonyBurden of ProofEmployment StatusIndustrial InjuryRight Hand InjuryPsyche InjuryHernia
References
1
Case No. MISSING
Regular Panel Decision

Peninsula National Bank v. Allen Carpet Shops, Inc. (In Re Allen Carpet Shops, Inc.)

The creditors' committee moved for reargument and reconsideration of a previous court decision that granted summary judgment in favor of Peninsula National Bank (PNB) against Allen Carpet Shops, Inc., the debtor in a Chapter 11 reorganization. PNB sought administrative priority for various payroll account overdrafts. The court reaffirmed the summary judgment for a $19,545.16 portion of PNB's claim and clarified that a $12,684.17 pre-petition overdraft constituted a general unsecured claim. However, the court identified several unanswered material facts concerning a $37,892.92 portion of PNB's claim, which involved checks drawn pre-petition but honored post-petition. Consequently, the court warranted a rehearing specifically on this disputed portion of the claim, effectively granting the committee's motion for reargument in part.

BankruptcyChapter 11 ReorganizationAdversary ProceedingSummary JudgmentReargument MotionAdministrative Expense PriorityWage PriorityDebtor-in-PossessionOverdraftsCreditors' Committee
References
9
Case No. MISSING
Regular Panel Decision

Lee v. ABC Carpet & Home

Plaintiff Richard Lee sued ABC Carpet & Home, Jerry Weinrib, and Paul Chapman for back wages under the Fair Labor Standards Act (FLSA) and New York Labor Law, asserting he was an employee. Defendants sought summary judgment, contending Lee was an independent contractor. The court employed the five-factor 'Economic Reality Test' to determine employment status. Significant factual disputes emerged concerning employer control, Lee's potential for profit or loss, the required skill for the work, the permanence of the working relationship, and whether carpet installation was an integral part of ABC's business. Given these unresolved material facts, the court denied the Defendants' motion for summary judgment.

Fair Labor Standards ActNew York Labor LawEmployee ClassificationIndependent ContractorSummary Judgment MotionEconomic Reality TestWage DisputesEmployment LawCarpet InstallersEmployer Control
References
24
Case No. 2021 NY Slip Op 04121 [195 AD3d 998]
Regular Panel Decision
Jun 30, 2021

Fiscina v. Boro Rug & Carpet Warehouse Corp.

The plaintiff, Patricia Fiscina, allegedly sustained personal injuries after tripping over carpeting being installed by Fredy Cruz, a subcontractor for Boro Rug & Carpet Warehouse Corp., at her workplace. Fiscina commenced a personal injury action, and Boro Rug moved for summary judgment, contending Cruz was an independent contractor and Fiscina could not identify the cause of her fall. The Supreme Court denied Boro Rug's motion. On appeal, the Appellate Division affirmed the Supreme Court's order, finding triable issues of fact existed regarding whether Cruz was an independent contractor (given that Boro Rug required him to wear their branded shirts and claim employment) and whether the plaintiff could identify the cause of her fall.

independent contractorsummary judgmentpersonal injurytort liabilitypremises liabilityworkplace accidentcarpet installationemployer-employee relationshiptriable issue of factappellate review
References
12
Case No. MISSING
Regular Panel Decision

the Claim of Brigandi v. Town & Country Linoleum & Carpet

This case involves an appeal by an employer and its compensation carrier against decisions made by the Workers’ Compensation Board. The decedent, a carpet layer, died from cardiac arrest during work, with an autopsy revealing underlying coronary atherosclerotic disease. His widow was awarded death benefits. The employer’s carrier sought reimbursement from the Special Disability Fund under Workers’ Compensation Law § 15 (8), asserting a preexisting permanent physical impairment. However, the Board determined that there was no evidence that the decedent’s heart condition hindered his job potential before his death, thus releasing the Special Disability Fund from liability and holding the compensation carrier responsible. The employer's subsequent application for reconsideration was denied by the Board, leading to these appeals. The appellate court affirmed the Board's decisions, concluding that the Board rationally found no proof that the decedent's heart disease impaired his job potential, a necessary condition for reimbursement under WCL § 15 (8) (d).

Special Disability FundPreexisting Permanent ImpairmentCardiac ArrestCoronary Atherosclerotic DiseaseDeath Benefits ClaimEmployer ReimbursementCarrier LiabilityBoard Decision ReviewAppellate AffirmationMedical Evidence Interpretation
References
2
Case No. ADJ6981979, ADJ6981698
Regular
Jan 17, 2014

LUZ ROMERO, LUZ ELENA ROMERO vs. DURA FREIGHT

The Workers' Compensation Appeals Board (WCAB) dismissed Dura Freight's Petition for Reconsideration in this case. The petition was deemed untimely because it was filed more than 25 days after the October 7, 2013, Order Dismissing Lien Claim Or Lien Balance. This delay exceeded the statutory 20-day filing period plus 5 days for mailing. Therefore, the WCAB dismissed the petition as procedurally invalid.

Dura Freightillegally uninsuredPetition for Reconsiderationuntimelydismissal25 daysLabor Code section 5903Code of Civil Procedure section 1013lien claimantWorkers' Compensation Appeals Board
References
0
Case No. ADJ7908543
Regular
Nov 13, 2012

JOSE RIVAS vs. CALIFORNIA CARPET, LLC, ICW GROUP

In Rivas v. California Carpet, LLC, the Appeals Board granted the defendant's Petition for Removal, rescinding a prior award of spinal surgery. The WCJ had improperly excluded the second opinion physician's report as untimely. The Board found the applicant waived his objection to the report's untimeliness by not raising it until after the examination. The case was returned to the trial level for reconsideration of the surgery's necessity, including the second opinion report.

Petition for RemovalFindings and AwardSpinal SurgeryPrimary Treating PhysicianSecond Opinion PhysicianLabor Code Section 4062(b)Timeliness ObjectionWaiverExpedited HearingMedical Unit
References
1
Case No. MISSING
Regular Panel Decision

Rothenberg v. Erie Metal Stamping Co.

Plaintiff Eric Rothenberg, president of Dura-Ware Company of America, was injured at the plant of Erie Metal Stamping Co., a company partially owned by Dura-Ware, while attempting to assist an employee. Rothenberg received workers' compensation benefits from Dura-Ware and subsequently filed a negligence action against Erie. The IAS Court initially granted summary judgment to Erie, ruling that Rothenberg was a "special employee" of Erie, thereby barring his lawsuit under Workers' Compensation Law. However, the appellate court reversed this decision, finding that Rothenberg was not an employee of Erie but rather a representative of Dura-Ware and a board member during his visit. Consequently, the appellate court denied Erie's motion for summary judgment and granted summary judgment to the plaintiffs, allowing the negligence action to proceed.

Special EmployeeWorkers' Compensation LawSummary JudgmentNegligence ActionCorporate OfficerBoard of DirectorsJoint VentureAppellate ReviewPersonal InjuryEmployer-Employee Relationship
References
9
Case No. MISSING
Regular Panel Decision

In re G. Fried Westburry, Inc.

G. Fried Westbury, Inc., a company selling carpet and floor coverings, appealed a decision by the Unemployment Insurance Appeal Board that mandated additional unemployment insurance contributions for their carpet installers. Despite a contract classifying installers as independent contractors, G. Fried maintained significant control over their work, including setting rates, scheduling installations, and investigating complaints. The Appellate Division affirmed the Board's decision, concluding that substantial evidence supported the finding that the installers were employees, thereby upholding the assessment for unemployment insurance contributions.

Unemployment InsuranceIndependent Contractor StatusEmployee ClassificationCarpet InstallersSubstantial Evidence ReviewControl TestEmployer LiabilityAppeal Board DecisionLabor LawNew York Appellate Division
References
3
Case No. MISSING
Regular Panel Decision

Claim of Alm v. Natural Health Family Chiropractic

Claimant filed for workers' compensation benefits in January 2008, alleging multiple chemical sensitivity due to new carpeting at her workplace. A Workers’ Compensation Law Judge and subsequently the Workers’ Compensation Board denied the claim, finding no causal relationship between her condition and employment. The Board also denied her request for reconsideration. The court affirmed these decisions, noting that conflicting medical evidence and testimony indicated claimant's symptoms began prior to the carpet installation, increased later, were more intense at home, and did not abate after she stopped working. An appeal regarding reconsideration was considered abandoned.

Workers' CompensationChemical SensitivityCausal RelationshipMedical EvidenceBoard ReviewAppeal AbandonmentAffirmationWorkplace InjurySymptomsConflicting Evidence
References
4
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