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

Case No. 2023 NY Slip Op 05796
Regular Panel Decision
Nov 16, 2023

Sason v. Dykes Lbr. Co., Inc.

Plaintiff Raphael Sason alleged that his deceased brother's mesothelioma resulted from asbestos exposure caused by Durham Rock Hard putty, a product obtained from defendant Dykes Lumber Company, Inc., among other suppliers. Dykes Lumber moved for summary judgment, asserting a lack of specific causation based on an expert's affidavit that calculated the decedent's asbestos exposure to be within ambient air levels. In opposition, plaintiff presented affidavits from a medical expert and an industrial hygienist whose reports, relying on simulation studies, concluded that the decedent's work created toxic concentrations of asbestos fibers exceeding known causative levels for mesothelioma. The Supreme Court denied the motion, recognizing a factual dispute regarding causation, and the Appellate Division, First Department, unanimously affirmed this decision.

MesotheliomaAsbestos ExposureSummary Judgment MotionCausation EvidenceExpert TestimonyIndustrial HygienistMedical Expert OpinionAppellate AffirmationToxic TortsProduct Liability
References
6
Case No. MISSING
Regular Panel Decision

Van Dyke v. Columbia MacHine, Inc.

Plaintiff Travis Van Dyke, a Pennsylvania resident, was gravely injured while performing maintenance on a palletizer machine manufactured by Columbia Machine Inc. and operated by his employer, Leprino Foods Company, at a plant located on the New York and Pennsylvania state line. Plaintiff received Pennsylvania workers' compensation. Columbia, a Washington corporation, filed a third-party complaint against Leprino, a Colorado corporation with operations in multiple states, seeking contribution or indemnification under New York Workers’ Compensation Law § 11, which allows such claims in "grave injury" cases. Leprino moved to dismiss, arguing that Pennsylvania law, which prohibits such third-party actions against employers, should apply. The court, applying New York's choice of law rules, found that Pennsylvania had a greater interest in protecting its statutory scheme immunizing employers. Consequently, the court granted Leprino's motion to dismiss Columbia's third-party complaint, ruling that Pennsylvania law applies.

Choice of LawWorkers' CompensationContribution ClaimsIndemnification ClaimsGrave InjuryEmployer LiabilityThird-Party ActionsProducts LiabilityFederal DiversityNew York Workers' Compensation Law
References
18
Case No. MISSING
Regular Panel Decision

Daniels v. Monroe County Child Support Collection Unit

This case concerns the priority of four liens against a $7,500 settlement received by Mr. Daniels. The liens include his attorney's charging lien, a workers' compensation lien by Legion Insurance, a child support lien by the Child Support Collection Unit for over $20,000, and a judgment lien by former landlord Robert Dykes. The court, presided over by Justice Andrew V. Siracuse, determined that the attorney's charging lien takes first priority based on logic and public policy, as the attorney created the fund benefiting all lienors. Legion Insurance's workers' compensation lien received second priority, as the Child Support Collection Unit had already had an opportunity to levy on the initial workers' compensation payments. The Child Support Collection Unit was placed third, and Robert Dykes's judgment lien was last. The court rejected arguments that CPLR 5242 (d) gave child support priority over statutory and charging liens in this specific context.

Lien PriorityAttorney's Charging LienWorkers' Compensation LienChild Support LienJudgment LienCPLR 5242 (d)Workers’ Compensation Law § 29Domestic Relations Law § 240Public PolicyEquitable Principles
References
2
Case No. MISSING
Regular Panel Decision

Kirschhoffer v. Van Dyke

Plaintiff Lynne A. Kirschhoffer was injured in a car collision, and defendants were found solely responsible. A jury initially awarded Kirschhoffer $8,595,000 and her husband $1.8 million for derivative claims. The Supreme Court conditionally reduced these awards for future pain and suffering, impairment of earning ability, and the derivative claim, to which plaintiffs stipulated. Defendants appealed, challenging the preclusion of their medical expert's testimony regarding Kirschhoffer's pre-existing spondylolisthesis and the refusal to instruct the jury on pre-existing conditions, both of which the appellate court affirmed. The defendants' contention regarding the speculative nature of lost future earning capacity was also rejected. However, the appellate court further reduced the awards for future pain and suffering, impairment of earning ability, and derivative damages, finding the prior reductions still materially deviated from reasonable compensation, and ordered a new trial on these specific damages unless plaintiffs stipulate to the further reduced amounts.

Personal InjuryCar AccidentDamages ReductionJury AwardMedical Expert TestimonyPre-existing ConditionLost Earning CapacityAppellate ReviewPain and SufferingSpondylolisthesis
References
23
Case No. ADJ6919393, ADJ6919452
Regular
Oct 06, 2014

LEES VAN DYKE vs. COUNTY OF VENTURA

The applicant, a deputy sheriff trainee, sustained admitted injury to his right foot, ankle, and hips on July 10, 2006, and a subsequent cumulative trauma injury ending around July 2007 to his feet and hips. The Workers' Compensation Appeals Board granted reconsideration to clarify that the applicant was not engaged in "active law enforcement service" for Labor Code section 4850 benefits during his specific injury on July 10, 2006. However, the entitlement to section 4850 benefits for the cumulative trauma injury remains deferred for further proceedings. The Board otherwise affirmed the WCJ's findings regarding temporary disability and permanent stationary date.

Workers' Compensation Appeals BoardLabor Code Section 4850Deputy Sheriff TraineeProvisional Deputy SheriffActive Law Enforcement ServiceCumulative TraumaSpecific InjuryPetition for ReconsiderationFindings and AwardAgreed Medical Examiner
References
1
Case No. ADJ4245808
Regular
Jan 13, 2013

PATRICIA ANNE DYKES vs. CITY OF SAN DIEGO

This case involves an applicant claiming a psyche injury due to sexual harassment and assault by a supervisor. The Workers' Compensation Appeals Board denied the applicant's petition for reconsideration. The judge found the applicant not credible due to inconsistent testimony and conflicting accounts of events. Medical opinions suggested pre-existing psychopathology and significant non-industrial stressors as the predominant causes of any alleged psychological issues. Ultimately, the applicant failed to meet her burden of proof regarding injury arising out of and in the course of employment.

Workers' Compensation Appeals BoardReconsideration DeniedPsyche InjuryAOE/COECredibility FindingSexual HarassmentSexual AssaultSupervisor MisconductWitness TestimonyMedical Records
References
1
Case No. STK 0188538
Regular
Jul 02, 2008

DAVID DYKES vs. E. & J. GALLO WINERY

The Workers' Compensation Appeals Board granted the defendant's petition to reopen a prior award due to a change in the law established by the Supreme Court in *Brodie v. Workers' Comp. Appeals Bd.* This change in law clarified the method for calculating permanent disability indemnity after apportionment, overriding a prior appellate court decision that the Board had relied on. Consequently, the Board rescinded the previous decision, granted the petition to reopen, and remanded the case to recalculate permanent disability indemnity based on the controlling Supreme Court precedent.

WCABPetition to ReopenReconsiderationRes JudicataGood CauseChange of LawLaw of the CaseApportionmentPermanent Disability IndemnityLabor Code Sections 4663
References
16
Case No. ADJ3189130 (STK 0188538)
Regular
Dec 08, 2010

DAVID DYKES vs. E. & J. GALLO WINERY

The Workers' Compensation Appeals Board granted reconsideration of a prior decision that found the applicant sustained a compensable industrial injury to his psyche. The Board found that the applicant failed to meet the burden of proof under Labor Code section 3208.3(b)(1) that actual employment events were the predominant cause of his psychiatric injury. Medical evidence submitted by the applicant's own psychologist was deemed insufficient due to lack of clear reasoning and an inability to establish predominant causation. Therefore, the Board amended the findings to reflect that no compensable industrial injury to the psyche was proven.

Workers' Compensation Appeals BoardE. & J. Gallo WineryDavid Dykesindustrial injurypsyche injurycompensable consequenceLabor Code section 3208.3(b)(1)predominant causesubstantial medical evidenceDr. Robert Schneider
References
4
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