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

Case No. 2018-08-1044
Regular Panel Decision
Mar 28, 2019

Sprague, Susan v. Bartlett City Schools

Susan Sprague, a Special Education Teacher’s Assistant for Bartlett City Schools, sustained a right shoulder injury on January 30, 2018, after falling off a ladder. Orthopedist Dr. Mark Harriman diagnosed a dislocated shoulder and humerus fracture, assigning an eight percent permanent impairment to the body as a whole. The core legal issue revolved around the proper calculation of her average weekly wage (AWW) for permanent partial disability. Ms. Sprague argued for a 42-week divisor, excluding summer breaks, while Bartlett Schools contended for a 52-week divisor. The Court ruled that Ms. Sprague's ten weeks off for summer break was a "recognized incident of her regular employment" and not a "fortuitous circumstance," thus confirming the 52-week calculation. Consequently, her average weekly wage was determined to be $468.34, resulting in a compensation rate of $312.23 and a permanent partial disability award of $11,240.28.

Average Weekly Wage CalculationPermanent Partial DisabilityShoulder InjurySchool EmployeeSeasonal EmploymentSummer BreakVoluntary AbsencesFortuitous CircumstanceWorkers' Compensation BenefitsMedical Impairment Rating
References
4
Case No. 926 S.W.2d 727 (1994)
Regular Panel Decision
May 23, 1994

State v. Keen

David M. Keen pled guilty to first-degree murder and aggravated rape of an 8-year-old girl. A jury sentenced him to death, finding multiple aggravating circumstances, including the victim's age, heinousness, and the murder occurring during rape. Keen appealed, raising 17 issues, primarily concerning jury instructions on mitigating circumstances and the death penalty statute. The Supreme Court of Tennessee found errors in the jury instructions regarding the weighing of aggravating and mitigating circumstances and the definition of 'heinous, atrocious, or cruel' aggravating circumstance. Consequently, the Court affirmed the conviction but remanded the case for a new sentencing hearing.

Capital PunishmentDeath PenaltySentencing ErrorJury InstructionsAggravating CircumstancesMitigating CircumstancesFelony MurderRapeChild VictimAutopsy
References
45
Case No. MISSING
Regular Panel Decision

People v. Young

An attorney representing an indigent defendant in Monroe County filed an application seeking reimbursement for legal services at a rate of $200 per hour, mirroring the rate charged by the Special Prosecutor, rather than the statutory rates under County Law § 722-b. The attorney argued that the significant disparity in hourly compensation violated the defendant's right to equal protection and that his qualifications justified the requested rate. The New York State Association of Criminal Defense Lawyers supported the application as amicus curiae, while Monroe County opposed it, arguing the request was untimely and lacked extraordinary circumstances. Presiding Judge Donald J. Mark, J., acknowledged the court's authority to grant compensation in excess of statutory limits under extraordinary circumstances but ultimately denied the application. The denial was based on the court's reasoning that an analogous argument was previously rejected, that linking assigned counsel rates to prosecutor rates would render County Law § 722-b ineffective, and that extraordinary circumstances could not be demonstrated prior to the conclusion of the criminal action. The court, however, reserved the right to reconsider an increased hourly fee upon the case's termination if such circumstances are then proven.

Assigned CounselLegal Aid CompensationCounty Law Section 722-bHourly Rate DisputeSpecial Prosecutor FeesIndigent RightsJudicial DiscretionExtraordinary CircumstancesMonroe County LawEqual Protection Challenge
References
16
Case No. MISSING
Regular Panel Decision

Campbell v. Brewster

This case involves a custody dispute where a father (petitioner) sought custody of his child from the maternal grandmother (respondent) after the child's mother was tragically murdered. The Family Court granted the father's application for custody, determining that the grandmother had not demonstrated the extraordinary circumstances required to override a parent's superior right to custody. The grandmother appealed, arguing that the child's long-standing placement with her and the potential psychological impact of removal after the mother's death constituted extraordinary circumstances. However, the appellate court affirmed the Family Court's decision, concluding that the respondent failed to establish such circumstances and thus, the father was entitled to custody.

Custody DisputeParental RightsExtraordinary CircumstancesNonparent CustodyMaternal GrandmotherChild CustodyFamily Court AppealVisitation RightsParental FitnessAppellate Decision
References
8
Case No. MISSING
Regular Panel Decision

In re Eddie M.

This case addresses whether a 12-day extension of the statutory 10-day limit for a juvenile dispositional hearing, mandated by Family Court Act § 350.1 (1), was justified by good cause or special circumstances. The 13-year-old appellant was arrested and, after a fact-finding hearing, his case was transferred from Westchester to Kings County. The adjournments were necessitated by the intercounty transfer, the need for a probation investigation, mental health study, and exploration of placement alternatives, which proved challenging. The court found that these circumstances constituted sufficient good cause and special circumstances, thereby affirming the order appealed from.

Speedy DispositionAdjournmentFamily Court Act § 350.1Intercounty TransferJuvenile JusticeGood CauseSpecial CircumstancesDispositional HearingProbation InvestigationPlacement Alternatives
References
7
Case No. MISSING
Regular Panel Decision
Feb 09, 1996

Hallahan v. Ashland Chemical Co.

Plaintiff William Hallaban, diagnosed with granulocytic leukemia, commenced a products liability action, alleging workplace chemical exposure as the cause. During discovery, defendants sought to depose plaintiffs' expert witnesses, physician Stewart Silvers and chemist Harold Zeliger, citing "special circumstances" due to the alleged novelty of their causation theories and a change in Silvers' diagnosis from acute to chronic granulocytic leukemia. The Supreme Court denied the defendants' motion, finding no special circumstances. The Appellate Division affirmed this decision, stating that the defendants' claims of "novel, unorthodox and unsupported" expert opinions did not constitute special circumstances for an oral examination of the experts before trial, especially as defendants had access to Silvers' medical records.

Products LiabilityExpert Witness DiscoverySpecial CircumstancesGranulocytic LeukemiaChemical ExposureMedical DiagnosisCPLR DiscoveryAppellate ReviewCausation TheoriesFrye Hearing Standard
References
6
Case No. KA 14-00721
Regular Panel Decision
Mar 20, 2015

SCZERBANIEWICZ, THOMAS, PEOPLE v

The case involves an appeal by Thomas Sczerbaniewicz from an Onondaga County Court order classifying him as a level three risk under the Sex Offender Registration Act (Correction Law § 168 et seq.). The Board of Examiners of Sex Offenders initially recommended a level one risk but applied an override to level three due to a diagnosed psychological abnormality impacting impulse control. The County Court, while not applying the override, determined an upward departure to level three was warranted based on aggravating circumstances. The Appellate Division, Fourth Judicial Department, unanimously affirmed the order, finding clear and convincing evidence that aggravating circumstances, such as the defendant's involvement in a child pornography ring, possession of over 1,500 child pornography images, and admitted fantasies in prison, justified the upward departure. The court also rejected the defendant's request for a downward departure, concluding that his cited mitigating factors were outweighed by the aggravating circumstances.

Sex Offender Registration ActSORARisk AssessmentUpward DepartureChild PornographyPsychological AbnormalityAggravating CircumstancesDownward DepartureAppellate ReviewCriminal Law
References
8
Case No. MISSING
Regular Panel Decision

Kesterson v. Varner

Bruce Varner (Father) appealed the trial court's dismissal of his Petition to Modify Custody of his son, J.V. The original custody was awarded to Judy Kesterson (Mother) in a 1990 divorce. Varner sought modification in 2002, citing J.V.'s serious mental health issues, including ADHD, Bipolar Disorder, and Oppositional Defiant Disorder, as a material change in circumstances. The trial court dismissed the petition, finding Varner failed to prove a material change in circumstances or that a custody change was in the child's best interest. The appellate court affirmed the trial court's decision, concluding that while a material change in circumstances was established due to J.V.'s mental health, Varner did not meet the burden of proof that changing custody to him would be in J.V.'s best interest, especially given expert testimony on J.V.'s manipulative behavior and the guardian ad litem's recommendation for J.V. to remain with the mother. The court also affirmed the allocation of attorney's fees and guardian ad litem fees to Varner.

Custody ModificationChild Mental HealthParental DiscretionBest Interest of ChildGuardian Ad Litem FeesAttorney Fees AwardAppellate ReviewTrial Court DismissalPsychiatric DiagnosisAttention Deficit Hyperactivity Disorder
References
29
Case No. ADJ271462 (SJO 0255768)
Regular
Apr 03, 2017

SHAWN LEWIS vs. TANEJA, INC dba PASSAGE TO INDIA, UNINSURED BENEFITS TRUST FUND OF THE STATE OF CALIFORNIA

This case involves an appeal of a $\$1,000$ sanction imposed on applicant's attorney for failing to appear at a hearing. The attorney argued he had arranged alternate representation, but the substitute attorney had a prior conflict with the applicant. The Workers' Compensation Appeals Board rescinded the sanction, finding the circumstances made imposition unjust, especially given opposing counsel's agreement to a continuance. The Board noted that while the attorney's planning was flawed, the judge should have granted the continuance due to these unusual circumstances.

WORKERS' COMPENSATION APPEALS BOARDPetition for ReconsiderationOrder Imposing SanctionsWCJAttorney SanctionsFailure to AppearAlternate RepresentationPersonal ConflictContinuance RequestWCAB Rule 10561
References
0
Case No. ADJ1923190
Regular
Jul 19, 2010

Richard Martinez vs. SIFLING BROTHERS, ZENITH INSURANCE COMPANY

Lien claimants, Dr. Silver and Dr. Bresler, sought payment for medical services exceeding the Official Medical Fee Schedule (OMFS). They argued their services warranted higher fees due to "extraordinary circumstances" and defendant's alleged improper billing practices. The Workers' Compensation Appeals Board denied their petitions for reconsideration, finding they failed to meet the burden of proof. The board held that lien claimants must demonstrate extraordinary circumstances justifying fees above the OMFS and present evidence of their usual and customary fees.

Workers' Compensation Appeals BoardRichard MartinezSifling BrothersZenith Insurance CompanyDavid BreslerDavid SilverSupplemental Findings and AwardOfficial Medical Fee ScheduleLien ClaimantsReconsideration
References
8
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