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

Case No. 2004 NY Slip Op 24299 [4 Misc 3d 974]
Regular Panel Decision
Aug 19, 2004

Themed Rests., Inc. v. Zagat Survey, LLC

Themed Restaurants, Inc., operating as Lucky Cheng's, sued Zagat Survey, LLC for libel, trade libel, and negligence, challenging a negative review in the 2004 NYC Restaurant Survey. The plaintiff alleged a 35% business drop post-publication, attributing it to the survey's low food rating and critical anonymous consumer comments about the restaurant's theme and offerings. The court considered whether survey-based reviews, utilizing anonymous opinions and numerical ratings, constituted protected opinion or actionable defamation. Ultimately, the court ruled that the review's statements and ratings were subjective opinions, not false statements of fact, and therefore protected by free speech principles. Additionally, the plaintiff failed to meet the pleading specificity requirement for constitutional malice. Consequently, the motion to dismiss was granted.

DefamationLibelTrade LibelRestaurant ReviewFirst AmendmentFreedom of SpeechConstitutional MaliceActual MalicePleading SpecificityConsumer Surveys
References
32
Case No. MISSING
Regular Panel Decision

Psihoyos v. National Geographic Society

This case concerns a copyright infringement dispute brought by Louis Psihoyos against The National Geographic Society (NGS). Psihoyos alleged that NGS infringed copyrights in his photograph of a dinosaur fossil and an accompanying illustration by publishing similar works in its magazine. NGS moved for summary judgment, arguing the similarities were due to unprotectible elements like common subject matter, or covered by doctrines such as merger and scenes a faire. The court analyzed the substantial similarity of the photographs, illustrations, and overall layout, finding that protectible elements were not substantially similar. Ultimately, the court granted NGS's motion for summary judgment and denied Psihoyos's cross-motion.

Copyright InfringementPhotographyIllustrationSummary JudgmentSubstantial SimilarityMerger DoctrineScenes A FaireIntellectual PropertyArtistic WorksDinosaur Fossil
References
33
Case No. MISSING
Regular Panel Decision

Themed Restaurants, Inc. v. Zagat Survey, LLC

Lucky Cheng’s, a New York City restaurant, sued Zagat Survey, LLC for libel, trade libel, and negligence after receiving a negative review in the 2004 NYC Restaurant Survey. The restaurant claimed a significant business decline and challenged the review, which was based on anonymous consumer comments and numerical ratings. Justice Diane A. Lebedeff considered whether such a survey-based review constituted actionable defamation under First Amendment protections. The court determined that the review's statements and ratings were subjective opinions, not false factual assertions, and thus constitutionally protected. Additionally, the plaintiff failed to meet the required standard of pleading constitutional malice, leading the court to grant the motion to dismiss the complaint.

DefamationLibelTrade LibelRestaurant ReviewFirst AmendmentFree SpeechPublic FigureActual MaliceConstitutional MaliceMotion to Dismiss
References
33
Case No. ADJ1210556 (AGO 0018589)
Regular
Oct 10, 2008

EDWIN MILLER vs. KEEBLER COMPANY

The Workers' Compensation Appeals Board (WCAB) dismissed the defendant's petition for removal and granted reconsideration of the WCJ's prior decisions regarding medical mileage and penalties. The Board found the WCJ failed to properly consider statutory factors in determining a "reasonable geographic area" for the applicant's medical treatment. Consequently, the WCAB rescinded the WCJ's decisions and returned the case to the trial level for further proceedings and a new decision addressing all outstanding issues, including the definition of a reasonable geographic area for treatment.

WCABPetition for RemovalPetition for ReconsiderationMedical MileageReasonable Geographic AreaLabor Code Section 4600Administrative Director Rule 9780(h)WCJBoltonRamirez
References
2
Case No. ADJ5744485 ADJ6979008 ADJ6979031
Regular
Sep 16, 2010

BRIAN MENICUCCI vs. STATE OF CALIFORNIA, DEPARTMENT OF TRANSPORTATION, STATE COMPENSATION INSURANCE FUND/STATE CONTRACT SERVICES

This Workers' Compensation Appeals Board decision clarifies that injured employees are not geographically restricted when selecting a physician within a defendant's Medical Provider Network (MPN). While general treatment under Labor Code section 4600(c) has a reasonable geographic limitation, this restriction does not apply to MPN physicians. The Board affirmed the ALJ's decision, holding that an employee can choose any MPN physician, regardless of distance, after their initial visit. The case specifically avoided ruling on travel expense reimbursement or injuries sustained during travel to the chosen physician.

Medical Provider NetworkMPNreasonable geographic areaLabor Code section 4600(c)Labor Code section 4616 et seq.Administrative Director Rule 9780(h)Administrative Director Rule 9767.6(e)physician of his or her choicestatutory constructionstatutory omission
References
3
Case No. ADJ20141319
Regular
Jun 20, 2025

CHARLES FRANKLIN vs. COUNTY OF SAN BERNARDINO

Applicant Charles Franklin sustained a low back injury. Defendant County of San Bernardino filed a petition for reconsideration concerning a scrivener's error in the case number and the geographic reasonableness of the applicant's chosen treating physician, Dr. Nassos. The Appeals Board granted reconsideration to correct the case number from ADJ20141320 to ADJ20141319. However, the Board denied the substantive arguments, affirming the original decision that the defendant failed to demonstrate the unreasonableness of Dr. Nassos's geographic location for treatment by not presenting evidence of a suitable alternative closer to the applicant's residence.

WORKERS' COMPENSATION APPEALS BOARDPETITION FOR RECONSIDERATIONLABOR CODE SECTION 5909TIMELY ACTIONELECTRONIC ADJUDICATION MANAGEMENT SYSTEMTRANSMISSION DATEBUSINESS DAYNOTICE OF TRANSMISSIONREPORT AND RECOMMENDATIONSCRIVENER'S ERROR
References
5
Case No. MISSING
Regular Panel Decision

Bourret v. Regan

A senior transportation survey supervisor, referred to as the petitioner, was injured while voluntarily assisting a co-worker in loading traffic survey material onto a truck. The petitioner injured an arm when a sign frame slipped, rendering him unable to work. Although his application for ordinary disability retirement was granted, his application for accidental disability retirement benefits was denied by the State Comptroller. The Comptroller determined that the injury was not an "accident" within the meaning of the Retirement and Social Security Law, concluding that loading vehicles was part of the petitioner's overall duties and that an item slipping during loading is an inherent risk. The court confirmed the Comptroller's determination, finding it supported by substantial evidence, and dismissed the petition.

Accidental DisabilityRetirement BenefitsState ComptrollerInjury at WorkLoading AccidentSubstantial EvidenceArticle 78 ProceedingState Department of TransportationInherent RiskDisability Retirement
References
1
Case No. ADJ532181 (SFO 0438716) ADJ250509 (SFO 0242560) ADJ6545137
Regular
Nov 14, 2014

MICHAEL THOMAS, vs. SAFEWAY STORES, INC. Permissibly Self-Insured,

This case involved an applicant seeking treatment from a highly specialized surgeon, Dr. Matsen, located in Seattle, for a complex shoulder revision. The original decision denied authorization for Dr. Matsen, deeming Seattle outside a reasonable geographic area, and excluded a crucial report from the applicant's treating physician, Dr. Osborn. The Appeals Board granted reconsideration, admitting Dr. Osborn's report, which strongly supported Dr. Matsen's expertise and the inadequacy of local Bay Area surgeons for this complex case. Based on the applicant's medical history and the availability of specialized treatment, the Board reversed the original decision, finding Dr. Matsen to be within a reasonable geographic area.

Workers' Compensation Appeals BoardReasonable geographic areaTreating surgeonAdministrative Director Rule 9780Labor Code section 4600Orthopedic surgeonTotal shoulder replacementRevision surgeryMedical historyPhysician competency
References
1
Case No. MISSING
Regular Panel Decision
Jul 14, 1989

Stanton Corp. v. Department of Labor of the State

The Supreme Court of New York County affirmed an order compelling the Department of Labor (DOL) to process requests for targeted jobs tax credits from employers utilizing "The Stanton Survey." The petitioner initiated a CPLR article 78 proceeding after DOL denied services, initially due to concerns about drug and alcohol questions violating Human Rights Law. Even after the Survey was amended to remove these, DOL continued denials, citing potential violations of the Ex-Offender Law regarding theft questions. The IAS court had partially granted the petition, and the Supreme Court agreed that DOL acted beyond its authority by denying services without a final determination from the New York State Division of Human Rights.

Targeted Jobs Tax CreditCPLR Article 78MandamusEmployment ScreeningStanton SurveyHuman Rights LawEx-Offender LawAdministrative AuthorityZone of InterestDenial of Services
References
1
Case No. MISSING
Regular Panel Decision

Moritt v. Governor of New York

This memorandum decision addresses the constitutionality of New York State Election Law, specifically subdivision 5 of section 136 and subdivision 2 of section 131, which pertain to geographical distribution requirements for signatures needed to place a candidate on a primary ballot. The court affirmed the Appellate Division's order, concluding that the State may constitutionally mandate a showing of state-wide support without imposing a substantial burden on primary ballot access. The requirement of 100 signatures from each of 20 Congressional districts was deemed not unconstitutionally onerous, serving the legitimate state interest of preventing ballot manipulation and ensuring broad-based numerical and geographical support. The decision also found no merit in the challenge to subdivision 2 of section 131 of the Election Law, asserting it does not violate the one man-one vote principle or the New York State Constitution.

ConstitutionalityElection LawPrimary BallotSignature RequirementsGeographical DistributionEqual ProtectionOne Man-One VoteBallot AccessState InterestPolitical Candidate
References
7
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