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

Case No. 532689
Regular Panel Decision
Oct 27, 2022

In the Matter of the Claim of Monica Patricia Hidalgo Bernal (Poncefarfan, (dec'd) Otto)

Monica Patricia Hidalgo Bernal filed a claim for workers' compensation death benefits after her spouse, a cab driver, was fatally stabbed while dispatched by New York Apple Car Service (NYACS). NYACS, a member of the Independent Livery Driver Benefit Fund (ILDBF), controverted the claim, contending the decedent was a black car operator, thus making the New York Black Car Operators Injury Compensation Fund (NYBCOICF) liable. The Workers' Compensation Board found the decedent to be an independent livery driver, holding NYACS and its ILDBF carrier responsible. The Appellate Division affirmed the Board's decision, referencing Matter of Cisnero v Independent Livery Driver Benefit Fund, and reiterated that the vehicle's affiliation with NYBCOICF does not negate liability when the dispatch originated from an independent livery base.

Workers' CompensationDeath BenefitsIndependent Livery Driver Benefit Fund (ILDBF)New York Black Car Operators Injury Compensation Fund (NYBCOICF)Livery DriverBlack Car OperatorStatutory InterpretationExecutive LawWorkers' Compensation LawAppellate Review
References
1
Case No. VNO 449913 VNO 449916 VNO 459604
Regular
Apr 08, 2008

EULALIO BERNAL vs. RSC INTERNATIONAL INCORPORATED

The Workers' Compensation Appeals Board dismissed lien claimant Dr. Tepper's petition for reconsideration because it was untimely filed. The Board found the petition was filed more than 20 days after the order disallowing the lien was served, a jurisdictional deadline. Even considering the lien claimant's claimed date of actual receipt, the petition remained untimely.

Workers' Compensation Appeals BoardEulalio BernalRSC International IncorporatedGil Tepper M.D.Lien ClaimantPetition for ReconsiderationOrder Disallowing LienNotice of Intention to Disallow LienUntimely PetitionLabor Code Section 5903
References
6
Case No. 530319
Regular Panel Decision
May 14, 2020

Matter of Neira-Bernal v. SIG Contr. Corp.

Claimant, a construction worker, sustained multiple injuries in a fall. A Workers' Compensation Law Judge (WCLJ) initially established the case for various causally-related injuries. Subsequently, claimant sought to amend his claim to include a traumatic brain injury (TBI) and consequential posttraumatic stress disorder (PTSD). After remittal and review, the Workers' Compensation Board (Board) disallowed the TBI amendment and rescinded the WCLJ's amendment to include PTSD. The Appellate Division, Third Department, affirmed the Board's decision, finding that the Board's resolution of conflicting medical opinions, particularly crediting the testimony of Dr. William Head Jr. over other medical experts, was supported by substantial evidence.

Workers' CompensationTraumatic Brain InjuryPost-Traumatic Stress DisorderMedical EvidenceConflicting Medical OpinionsCausally Related InjuryClaim AmendmentSubstantial EvidenceAppellate ReviewIndependent Medical Examination
References
6
Case No. ADJ10316246
Regular
Aug 03, 2016

SUSANA BERNAL vs. HAGGEN

The Workers' Compensation Appeals Board denied Susana Bernal's Petition for Removal. Removal is an extraordinary remedy requiring a showing of substantial prejudice or irreparable harm, which the applicant failed to demonstrate. The Board adopted the WCJ's report, finding reconsideration would be an adequate remedy and the petition for automatic reassignment was inapplicable to a priority conference. The applicant's request for disqualification of the WCJ was also deemed improper.

Workers' Compensation Appeals BoardPetition for RemovalSubstantial PrejudiceIrreparable HarmReconsiderationAutomatic ReassignmentWCAB Rule 10453Disqualification of WCJPriority ConferenceDeclaration of Readiness
References
2
Case No. 2022 NY Slip Op 06033
Regular Panel Decision
Oct 27, 2022

Matter of Bernal v. New York Apple Car Serv.

Claimant's spouse, a cab driver dispatched by New York Apple Car Service (NYACS), was fatally stabbed while working. Claimant filed for workers' compensation death benefits. NYACS, a member of the Independent Livery Driver Benefit Fund (ILDBF), disputed liability, contending the decedent was a black car operator, making the New York Black Car Operator's Injury Compensation Fund (NYBCOICF) responsible. The Workers' Compensation Board affirmed a Workers' Compensation Law Judge's decision that the decedent was an independent livery driver, holding the ILDBF carrier liable. The Appellate Division affirmed the Board's determination, rejecting the argument that the vehicle's affiliation with the NYBCOICF was determinative and relying on precedent set in _Matter of Cisnero v Independent Livery Driver Benefit Fund_.

Workers' CompensationDeath BenefitsIndependent Livery DriverBlack Car OperatorFund LiabilityStatutory InterpretationAppellate ReviewDispatch ServiceEmployer ResponsibilityVehicle Affiliation
References
1
Case No. ADJ8010880
Regular
May 03, 2016

Jose Bernal vs. Bellflower Unified School District, York

This case involves a worker's compensation claim by Jose Bernal against the Bellflower Unified School District for a back and leg injury sustained while on duty. The School District petitioned for reconsideration of the initial award of 104 weeks of temporary disability, arguing the applicant was not credible due to undisclosed prior back pain and that the treating physician's report lacked substantial evidence. The Workers' Compensation Appeals Board denied the reconsideration, upholding the Administrative Law Judge's credibility determination, which was based on observing the applicant's demeanor and finding no substantial evidence to reject the judge's findings. The Board agreed that prior minor back issues were not material to the current injury and did not warrant overturning the temporary disability award.

Workers' Compensation Appeals BoardPetition for ReconsiderationWCJcredibility determinationtemporary disabilityAOE/COEtreating physicianQMEapportionmentlumbar stenosis
References
2
Case No. ADJ7144907
Regular
Jun 26, 2012

OSVALDO BERNAL vs. NATIONAL CITY FLOOR COVERINGS, INSURANCE COMPANY OF THE WEST

This order denies Osvaldo Bernal's petition for reconsideration in his workers' compensation case against National City Floor Coverings and Insurance Company of the West. The Workers' Compensation Appeals Board adopted the administrative law judge's report and recommendations, finding no basis to overturn the original decision. Consequently, the Board officially denied reconsideration of the matter.

Workers' Compensation Appeals BoardNational City Floor CoveringsInsurance Company of the WestADJ7144907Order Denying ReconsiderationPetition for ReconsiderationAdministrative Law Judge ReportApplicantDefendantRonnie G. Caplane
References
0
Case No. ADJ13385386
Regular
Nov 17, 2020

ABRAHAM BERNAL vs. NIAGARA BOTTLING, LLC, SAFETY NATIONAL CASUALTY COMPANY

The Workers' Compensation Appeals Board (WCAB) granted reconsideration to amend the original decision regarding applicant Abraham Bernal's average weekly wage. The WCAB found the prior calculation of $\$1,383.39$ per week was erroneous as it diluted the applicant's earning capacity by using a lower hourly wage than his rate at the time of injury. The Board recalculated the average weekly wage based on actual hours worked, including overtime and holiday pay, at the applicant's established $\$27.00$ per hour rate. This resulted in an amended average weekly wage of $\$1,414.26$, increasing the temporary disability indemnity rate to $\$942.84$ per week.

ADJ13385386NIAGARA BOTTLING LLCSAFETY NATIONAL CASUALTY COMPANYVan Nuys District OfficePETITION FOR RECONSIDERATIONAVERAGE WEEKLY WAGESTEMPORARY DISABILITY INDEMNITYLABOR CODE § 4453(c)EARNING CAPACITYREGULAR WAGE
References
2
Case No. ADJ9409541
Regular
Aug 23, 2019

LUIS MEDINA BERNAL (Deceased), PATRICIA SOLANO VASQUEZ, MISAEL MEDINA SOLANO, LUCIA MEDINA SOLANO, XIMENA MEDINA SOLANO, I SAI MEDINA SOLANO, LUIS EMANUEL MEDINA SOLANO vs. REBECCA BAUTISTA dba REMAC TIRE SERVICES, UNINSURED EMPLOYERS BENEFITS TRUST FUND

This case involves a fatal industrial injury to Luis Medina Bernal, a tire changer. The Workers' Compensation Appeals Board (WCAB) granted reconsideration to clarify death benefit payment terms. While the WCJ correctly found petitioning applicants failed to prove partial dependency, the WCAB amended the decision. The death benefit for the widow, Patricia Solano Vasquez, is to be paid bi-weekly at $297.29 until the $250,000 total is exhausted. The attorney's fee was recalculated to $34,042.54, representing 15% of the death benefit's present value.

Workers' Compensation Appeals BoardPetition for ReconsiderationDecision After ReconsiderationFatal Industrial InjuryPartial DependencyCredibility DeterminationsNet Financial BenefitDeath BenefitPresent ValueAttorney's Fee
References
4
Case No. MISSING
Regular Panel Decision
Feb 28, 2014

Sanchez v. Local 660, United Workers of America

Plaintiffs Hector Sanchez and Carlos Bernal Araujo brought claims against Metropolitan Paper Recycling, Inc. and Local 660, United Workers of America, alleging breach of a collective bargaining agreement and violation of the federal duty of fair representation. The court addressed Metropolitan Paper's motion to dismiss and Plaintiffs' motion to amend the complaint. Sanchez's claims were dismissed with prejudice due to the six-month statute of limitations, as his NLRB charge was filed more than six months before the action commenced. Conversely, Bernal Araujo's claims for failure to exhaust remedies were denied dismissal, with the court finding sufficient allegations that the union breached its duty of fair representation. Additionally, Metropolitan Paper's motion for sanctions against Plaintiffs' counsel was denied for procedural deficiencies. Plaintiffs' motion to amend was granted in part, allowing for typographical corrections and the addition of a new claim by Bernal Araujo regarding a failure to recall, but denied for re-alleging Sanchez's time-barred claims.

Collective Bargaining AgreementDuty of Fair RepresentationMotion to DismissMotion to AmendStatute of LimitationsHybrid ClaimExhaustion of Administrative RemediesNational Labor Relations BoardSeniority RightsUnlawful Termination
References
25
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