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

Case No. MISSING
Regular Panel Decision

Formal Opinion No.

This opinion from the Chairman of the New York Workers' Compensation Board addresses the priority of income execution and income deduction orders, established by the 1985 Support Enforcement Act (CPLR §§ 5241, 5242), against other statutory deductions from workers' compensation awards. Historically, WCL § 33 provided broad exemptions for workers' compensation benefits. However, WCL §§ 206(2) and 25(4)(a) allow for reimbursement of disability insurers and employers for advance payments, respectively, and WCL § 24 establishes liens for attorneys' fees, traditionally enjoying highest priority. The 1985 Act amended WCL § 33 to make benefits subject to support enforcement and also stipulated that income executions and deduction orders take priority over other assignments, levies, or processes. The Board concluded that claims for attorneys' fees and reimbursements by disability insurance carriers and employers are to be deducted first from the workers' compensation award. The support enforcement remedies under CPLR §§ 5241 and 5242 then apply to the balance of the workers' compensation benefits paid to the employee. This approach ensures prompt payment to injured workers and prevents double payment issues.

Workers' CompensationSupport Enforcement ActIncome ExecutionIncome DeductionLien PriorityStatutory InterpretationDisability Benefits ReimbursementEmployer ReimbursementAttorneys' Fees PriorityCPLR 5241
References
9
Case No. MISSING
Regular Panel Decision
May 17, 2016

United States v. Nesbeth

Chevelle Nesbeth was convicted by a jury for importation of cocaine and possession with intent to distribute. Senior District Judge Block rendered a non-incarceratory sentence of one-year probation, with special conditions including six months' home confinement and 100 hours of community service. The judge wrote this opinion to emphasize the importance of considering the numerous statutory and regulatory collateral consequences facing Nesbeth as a convicted felon, such as restrictions on employment, housing, and voting. These consequences were extensively balanced against 18 U.S.C. § 3553(a) factors to determine a just punishment. The opinion advocates for legal counsel and the Probation Department to proactively address collateral consequences in all future pre-sentence reports and sentencing proceedings.

Collateral ConsequencesSentencing ReformCriminal JusticeProbationary SentenceDrug Trafficking OffensesFelony ConvictionJudicial DiscretionFederal Sentencing GuidelinesRehabilitationRecidivism
References
55
Case No. MISSING
Regular Panel Decision

Pizzo v. Barnhart

Plaintiff Kathleen Pizzo appealed the Commissioner of the Social Security Administration's final determination denying her disability insurance benefits. The District Court reviewed the ALJ's decision, which had assigned no weight to the treating physician's opinion and significant weight to a consulting physician's report. The court found that the ALJ erred by failing to give appropriate weight to the treating physician's opinion, not adequately developing the administrative record to obtain missing medical notes, and giving undue weight to the consulting physician's report which did not explicitly support the capacity for sedentary work. Consequently, the Commissioner's determination was remanded for further administrative proceedings consistent with the District Court's decision, granting the plaintiff's motion for judgment on the pleadings to the extent of the remand and denying the Commissioner's cross-motion.

Social Security ActDisability Insurance BenefitsAdministrative Law JudgeTreating Physician RuleResidual Functional CapacitySedentary WorkMedical EvidenceRemandSubstantial EvidenceRecord Development
References
23
Case No. ADJ4502123
Regular
Jun 26, 2012

DONALD VIEIRA vs. BUILDING OPPORTUNITIES FOR SELF-SUFFICIENCY, STATE COMPENSATION INSURANCE FUND

This case involves defendant's petition for reconsideration of a finding of 100% permanent disability and no apportionment. Defendant argues the WCJ erred by not considering an Agreed Medical Evaluator's opinion attributing 50% of the disability to nonindustrial factors. The Appeals Board granted reconsideration, rescinded the WCJ's findings, and returned the case to the trial level. This action was taken because the medical evidence and other exhibits were not formally admitted into evidence, preventing meaningful review. The WCJ must now prepare a proper record and issue a new decision.

Workers' Compensation Appeals BoardIndustrial InjuryPermanent DisabilityApportionmentAgreed Medical EvaluatorSubstantial EvidenceAdmissions of EvidenceWCJPetition for ReconsiderationLabor Code Section 5313
References
2
Case No. ADJ608889 (POM 0271021) ADJ1865253 (POM 0271022)
Regular
Jul 09, 2009

BARBARA GARCIA vs. COLEN AND LEE, FREMONT EMPLOYERS INSURANCE COMPANY as administered by EMPLOYERS

The Workers' Compensation Appeals Board (WCAB) rescinded the prior award due to a deficient record, specifically the failure to formally admit crucial medical evidence. The WCAB found that the administrative law judge's decision was not based on admitted evidence, necessitating a return to the trial level. Furthermore, the WCAB found the judge's analysis of the "good faith personnel action" defense to be insufficiently explained and lacking in proper legal application. The matter is remanded for further proceedings, including admitting evidence and issuing a new decision consistent with the WCAB's opinion.

Workers' Compensation Appeals BoardReconsiderationFindings and AwardPsychiatric injuryTemporary disabilityPermanent disabilityAdmitting exhibitsOpinion on decisionGood faith personnel actionLabor Code §3208.3
References
10
Case No. ADJ1525286 (BAK 0139320)
Regular
May 15, 2014

JOHN TRENEER vs. PRO TECH OFFICE SERVICES, LIBERTY MUTUAL INSURANCE

The Workers' Compensation Appeals Board (WCAB) rescinded an award of 100% permanent disability for John Treneer due to an inadequate evidentiary record. The Board found uncertainty regarding whether the trial judge formally admitted and considered all submitted medical evidence, including defendant Liberty Mutual's reports. Consequently, the case was returned to the trial level for further proceedings to correct the record and potentially develop medical evidence through an Agreed or Independent Medical Examiner. A dissenting opinion argued that sufficient evidence supported the original award, and the WCJ properly exercised discretion in evaluating medical reports.

ReconsiderationFindings of Fact and AwardAgreed Medical ExaminerIndependent Medical ExaminerPermanent DisabilityQualified Medical EvaluatorSubstantial Medical EvidenceApportionmentNon-industrial InjuryDue Process
References
7
Case No. ADJ8700541
Regular
Oct 17, 2019

ZAHRA STEPHENS vs. COX ENTERPRISES, INC.

The Appeals Board granted reconsideration to review the WCJ's finding of permanent and total disability based on the opinions of a psychologist, Dr. Windman, and a vocational expert, Mr. Wilkinson. The Board found that Dr. Windman's opinion lacked substantial evidence due to inconsistencies, inadequate record review, and conflicts with other medical opinions. Consequently, Mr. Wilkinson's vocational opinion, which relied heavily on Dr. Windman's findings, was also deemed not substantial evidence. The case is remanded to the trial level for further proceedings and a new determination of permanent disability.

Workers' Compensation Appeals BoardReconsiderationPermanent Total DisabilityMedical OpinionVocational ExpertSubstantial EvidencePQMENeurologistPsychologistOrthopedist
References
10
Case No. ADJ1142998 (RDG 0118288)
Regular
Aug 18, 2009

STEVE REYNOLDS vs. WYCKOFF LOGGING, STATE COMPENSATION INSURANCE FUND

This case concerns a defendant's petition for reconsideration of a prior Workers' Compensation Appeals Board (WCAB) decision. The WCAB had previously rescinded a finding that avascular necrosis was not a compensable consequence of the applicant's injury, finding the relied-upon medical opinion speculative. The defendant argues the WCJ correctly favored the opinion of Dr. Glancz over Dr. Barber. The WCAB denied reconsideration, reaffirming that Dr. Glancz's opinion was not substantial evidence due to repeated questioning of the injury mechanism, while Dr. Barber's opinion was persuasive and based on a complete history. Therefore, the WCAB maintained its prior decision that Dr. Barber's opinion constituted substantial evidence supporting the applicant's claim.

Avascular necrosiscompensable consequencesubstantial evidencemedical opinionworkers' compensation administrative law judgereconsiderationfindings and ordermedical treatmentindustrial basissubstantial evidence
References
1
Case No. ADJ6778085
Regular
Jan 08, 2014

DANIEL LOBATO vs. PENHALL INTERNATIONAL CORPORATION, ZURICH/CONVERIUM, Administered by SEDGWICK CMS

The Workers' Compensation Appeals Board (WCAB) has issued an Opinion and Order dismissing a Petition for Reconsideration in the case of Daniel Lobato v. Penhall International Corporation. The petitioner, who filed the reconsideration, has withdrawn their petition. Consequently, the WCAB has formally dismissed the reconsideration as requested.

Petition for ReconsiderationWithdrawn PetitionerDismissed PetitionWorkers' Compensation Appeals BoardADJ6778085November 14 2013 DecisionLong Beach District OfficeZurich/ConveriumSedgwick CMSPenhall International Corporation
References
0
Case No. ADJ10266933
Regular
Mar 13, 2023

AIDA GONZALEZ GONZALEZ vs. HOTEL YOUNTVILLE LLC, GALLAGHER BASSETT

The Workers' Compensation Appeals Board has dismissed a Petition for Removal filed by the applicant. This dismissal is due to the petitioner's voluntary withdrawal of the petition. The original order addressed by the petition was issued on September 6, 2022. The Board issued its Opinion and Order on March 13, 2023, formally dismissing the action.

Petition for RemovalDismissedWorkers' Compensation Appeals BoardAdjudication NumberHotel Yountville LLCGallagher BassettAida Gonzalez GonzalezSan Francisco District OfficeCommissionerChair
References
0
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