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

Case No. ADJ2068970 (STK 0167616)
Regular
Aug 20, 2015

Norman McAtee vs. Briggs & Pearson Construction, State Compensation Insurance Fund

The Workers' Compensation Appeals Board granted the applicant's petition for reconsideration, finding that the Administrative Director's prior Independent Medical Review (IMR) determination was based on plainly erroneous findings of fact. The Board concluded that the IMR wrongly stated there was no documentation of improved function or reduced pain with the applicant's Duragesic patches, citing medical reports and applicant testimony to the contrary. Therefore, the IMR decision was rescinded, the applicant's appeal was granted, and the treatment dispute was remanded for a new IMR.

WCABPetition for ReconsiderationIndependent Medical ReviewLabor Code Section 4610.6(h)Plainly Erroneous Findings of FactAdministrative DirectorDuragesicOpioid AnalgesicsPermanent DisabilityMedical Treatment
References
0
Case No. ADJ630145 (OXN 0147327)
Regular
Jan 15, 2015

GREGORY NILSEN vs. VISTA FORD, PACIFIC COMPENSATION INSURANCE COMPANY

This case concerns an applicant's claim for Lidoderm patches as medical treatment. The employer sought reconsideration of an administrative law judge's award, arguing that a prior Independent Medical Review (IMR) decision should have prevented the award and that the matter should be remanded. The Appeals Board, applying its subsequent en banc decision in *Dubon II*, affirmed the original award. However, the Board amended the award to defer issues related to the applicant's appeal of the IMR decision and the award of Lidoderm patches.

WCABPetition for ReconsiderationFindings and AwardIndependent Medical ReviewIMRDubon v. World RestorationLidoderm patchestreating physicianLabor Code section 4610.6(i)Administrative Director
References
2
Case No. MISSING
Regular Panel Decision

Gannon v. All Car Movers, Ltd.

The plaintiff suffered personal injuries after slipping on an ice patch on the steps of a building. The building was owned by Abbey Island Park, Inc., leased to Apex Transportation Corp., and subleased to All Car Movers, Ltd. Abbey Island Park, Inc. appealed an interlocutory judgment finding it liable, arguing insufficient evidence of its control over the premises or notice of the ice. The appellate court affirmed the judgment, concluding that the jury could rationally find the lessor retained control due to a lack of documentary evidence transferring maintenance duties and its own continued grass mowing. Furthermore, the court found the jury could reasonably infer the lessor had notice of the ice patch, which likely formed from a snowstorm six days prior to the accident, despite minor precipitation the day before.

Premises LiabilitySlip and FallIce AccumulationLessor ControlConstructive NoticeJury Verdict SufficiencyAppellate AffirmationPersonal InjuryReal Property LawNassau County
References
9
Case No. ADJ3274679
Regular
Jun 26, 2012

PATCHES CONWAY vs. ARCHITECTURAL ART MANUFACTURER, CHARTIS

The Workers' Compensation Appeals Board dismissed the defendant's Petition for Reconsideration because the defendant voluntarily withdrew it. The defendant had initially sought to set aside an Order Approving Compromise and Release, alleging an inadvertent clerical error by the applicant. However, the issue was resolved when the applicant corrected the error and the Appeals Board incorporated the amendments. Therefore, no further action was required on the reconsideration petition.

Workers' Compensation Appeals BoardPetition for ReconsiderationCompromise and ReleaseOrder Approving Compromise and ReleaseSet Aside OrderInadvertent ErrorClerical ErrorIncorporate by ReferenceDismissed PetitionStatus Conference
References
0
Case No. MISSING
Regular Panel Decision
Dec 30, 1993

Zetlin v. City of New York

The Supreme Court, New York County, denied the defendant-appellant's motion for summary judgment to dismiss the complaint. This decision was unanimously affirmed on appeal. The case involves a plaintiff who allegedly fell on a municipal sidewalk that had been previously repaired by the defendant-appellant's employees. A question of fact remains regarding the negligence of the defendant-appellant's employees in properly patching the sidewalk, as a building superintendent testified to superficial repairs causing rutting, creating an issue of fact.

Sidewalk DefectNegligenceSummary JudgmentQuestion of FactMunicipal SidewalkBuilding SuperintendentInadequate RepairPersonal InjuryAppellate DecisionNew York Law
References
1
Case No. ADJ1424522 (SDO 0299397)
Regular
Mar 29, 2018

PETER WINOKUR vs. MONTEREY FINANCIAL SERVICES, FARMERS INSURANCE GROUP

The Workers' Compensation Appeals Board (WCAB) affirmed a judge's decision denying the applicant's claim for acupuncture and lidocaine patches. The applicant argued that acupuncture was not subject to utilization review (UR) based on *Patterson v. The Oaks Farm*, but the Board found *Patterson* inapplicable as there was no evidence of ongoing authorization for acupuncture. All Independent Medical Review (IMR) determinations upholding UR denials were affirmed, as the WCAB's review of IMR decisions is limited to specific grounds. The applicant failed to present clear and convincing evidence of plainly erroneous factual findings by IMR.

Workers Compensation Appeals BoardPetition for ReconsiderationAdministrative Law JudgeFindings and OrderMedical TreatmentAcupunctureLidocaine PatchesUtilization ReviewIndependent Medical Review (IMR)Patterson v. The Oaks Farm
References
9
Case No. MISSING
Regular Panel Decision

Tuthill v. United States

Plaintiff Beverly Tuthill brought an action against the United States of America under the Federal Tort Claims Act after suffering injuries from a slip and fall on ice at the West Point Visitor's Center parking lot. The defendant moved for summary judgment, arguing they had no duty to protect the plaintiff from an open and obvious condition and lacked notice of the icy patch. The court denied the defendant's motion, citing genuine issues of material fact regarding whether the ice was indeed open and obvious and whether the defendant had constructive notice due to a potentially recurring ice problem in the area and the reasonableness of their inspection procedures. The case is to proceed to trial.

Federal Tort Claims ActSlip and FallSummary Judgment MotionNegligenceNew York LawOpen and Obvious HazardConstructive NoticeRecurring ProblemPremises LiabilityDuty of Care
References
17
Case No. 2019 NY Slip Op 08791 [178 AD3d 473]
Regular Panel Decision
Dec 10, 2019

Garcia v. SMJ 210 W. 18 LLC

Plaintiff Juan Garcia was injured when struck by a falling piece of DensGlass while working on a temporary exterior platform on the 21st floor of a building under construction. He was dismantling a bridge linked to an exterior hoist elevator when the material, matching a missing piece from the floor above, struck him. The court reversed the lower court's decision, granting plaintiff's motion for partial summary judgment on his Labor Law § 240 (1) claim, finding that the exterior facade was incomplete and workers were performing patch work above. Additionally, the court denied the defendants-respondents' cross motions for summary judgment on the Labor Law § 241 (6) claim, citing a triable issue of fact regarding the necessity of overhead protection in an area exposed to falling objects.

Construction AccidentFalling ObjectLabor Law 240(1)Labor Law 241(6)Summary JudgmentAppellate ReviewPersonal InjuryWorker SafetyOverhead ProtectionBuilding Under Construction
References
2
Case No. MISSING
Regular Panel Decision

Garelle v. Geinitz

Plaintiff, an employee of Total Recall, slipped and fell on an ice patch in the parking lot while on a work-sanctioned break, subsequently commencing a negligence action for personal injuries. Defendant, president and shareholder of Total Recall and property owner, moved for summary judgment asserting the complaint was barred by Workers’ Compensation Law. The Supreme Court initially granted the defendant's motion, but the appellate court found questions of fact existed regarding whether the accident site was under the exclusive control of Total Recall. Consequently, the appellate court determined that the Supreme Court erred in granting defendant's motion for summary judgment. The order was modified to deny the defendant's summary judgment motion, while affirming the denial of plaintiff's motion to dismiss the Workers’ Compensation Law affirmative defense.

NegligenceSlip and FallIce PatchWorkers' Compensation LawCoemployee ImmunityProperty Owner LiabilitySummary JudgmentExclusive RemedyAppellate ReviewQuestions of Fact
References
5
Case No. 526425
Regular Panel Decision
Nov 15, 2018

Matter of Gasparro v. Hospice of Dutchess County

Mary Ann Gasparro, a claimant with a permanent partial disability from a 1995 work injury, moved to Nevada. In 2016, her employer's workers' compensation carrier objected to payments for topical pain relief products, LidoPro and Terocin patches, prescribed by a Nevada pain management specialist. The Workers' Compensation Board reversed a Workers' Compensation Law Judge's ruling, deciding that New York's Medical Treatment Guidelines apply to out-of-state treatment for nonresident claimants, a departure from its prior decisions. The Board found the prescribed medications were not in accordance with the guidelines due to concomitant use and duration. The Appellate Division, Third Department, affirmed the Board's decision, deeming its change in course rational and its application of the guidelines to out-of-state treatment reasonable. The court concluded that the Board's finding of medical necessity and non-compliance with guidelines was supported by substantial evidence.

Workers' CompensationMedical Treatment GuidelinesOut-of-State Medical CareNonresident ClaimantsPain ManagementTopical Pain ReliefLidoProTerocin PatchesAppellate DivisionBoard Reversal
References
12
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