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

Case No. 2019 NY Slip Op 06258 [175 AD3d 918]
Regular Panel Decision
Aug 22, 2019

Kelsey v. Hourigan

John A. Kelsey was injured when a cow fell on him at a dairy farm owned by defendants. He filed a workers' compensation claim against Gerald E. Hourigan, Jr., who was determined to be his employer, and received benefits. While an administrative appeal was pending, Kelsey commenced a civil action seeking damages. The Appellate Division, Fourth Department, concluded that workers' compensation was Kelsey's exclusive remedy under Workers' Compensation Law § 11. Consequently, the court modified the Supreme Court's order, denying part of the cross motion, reinstating an affirmative defense based on workers' compensation exclusivity, and dismissing the complaint.

Workers' Compensation ExclusivityDairy Farm AccidentSummary JudgmentAffirmative DefensesExclusive RemedyAppellate ReviewPersonal InjuryEmployer LiabilityPartnership LiabilityOnondaga County
References
8
Case No. ANA 0395316
Regular
Dec 31, 2007

GERALD ZEVNICK vs. HUNTINGTON BEACH UNION HIGH SCHOOL DISTRICT

The Appeals Board granted reconsideration of the original decision, rescinding the prior order that the hospital's lien was reasonable and entitled to penalties. This action returns the case to the trial level to allow the defendant employer the opportunity to present their expert bill reviewer's testimony on the reasonableness of the charges. The Board found that the defendant was denied due process when their expert witness was prevented from testifying due to an automobile accident, and the WCJ improperly denied a continuance.

Workers' Compensation Appeals BoardGerald ZevnickHuntington Beach Union High School Districtpermissible self-insuredlienHuntington Beach Hospitalreasonableness of chargesdue processcontinuanceexpert witness
References
3
Case No. ADJ8076231, ADJ7548354, ADJ8286584, ADJ8286596
Regular
Aug 01, 2014

Gerald Miller vs. CITY OF FRESNO

The Workers' Compensation Appeals Board granted Gerald Miller's petition for reconsideration of an earlier award. The Board found the original judge did not adequately address the affirmative defense of good faith personnel actions regarding Miller's psychiatric injury claim. Therefore, the case is returned to the trial level for further proceedings to clarify whether the alleged personnel actions were lawful and in good faith and if they substantially caused Miller's injury. This amendment defers the determination of the psyche injury claim pending this further review.

WCABPetition for ReconsiderationJoint Findings of Fact and Awardcumulative traumapolice officerpsyche injuryLabor Code section 3208.3(h)good faith personnel actionsubstantial causepredominant cause
References
2
Case No. MISSING
Regular Panel Decision

Buckley v. Radovich

The dissenting opinion argues that the plaintiff, Gerald Buckley, an employee of Fillmore Real Estate, Inc., who was injured falling from a ladder while hanging a "For Sale" sign on a building owned by Rose Lombardi and her deceased husband, is not entitled to recover under Labor Law § 240 (1). The dissent asserts that the statute, intended to protect workers during specific activities like construction, demolition, alteration, or repair, does not encompass routine maintenance or temporary advertising tasks such as hanging a sign. Citing previous rulings, the dissent emphasizes that the work performed by Buckley does not involve the "inordinate danger" or structural work envisioned by the statute, urging against a broad interpretation that would extend strict liability beyond its legislative intent.

Labor Law § 240(1)Scaffold LawStrict LiabilityElevated Worksite InjuryStatutory InterpretationConstruction WorkBuilding AlterationRoutine Maintenance ExemptionReal Estate AgentFor Sale Sign
References
11
Case No. MISSING
Regular Panel Decision
Mar 04, 2011

TANNER, GERALD v. RYAN, SHAWN M.

Plaintiffs commenced this action seeking damages for injuries sustained by Gerald Tanner when he fell from the roof of a home owned by defendants, allegedly due to their negligence. The Supreme Court denied defendants' motion for summary judgment, and the defendants appealed this decision. The appellate court affirmed the lower court's denial, citing the common-law duty of a landowner to provide a reasonably safe place to work. The court found that issues of fact existed regarding whether the defendant supervised or controlled the plaintiff's work, noting testimony that the defendant provided tools, assisted with the work, and mocked the plaintiff's request for a safety rope.

Personal InjuryNegligenceSummary JudgmentLandowner LiabilityDuty to Provide Safe WorkplaceConstruction AccidentFall from HeightAppellate ReviewFactual DisputeCommon-law Duty
References
4
Case No. ADJ1260866 (LAO 0864160) ADJ985895 (LAO 0864161)
Regular
Dec 28, 2011

GERALD MAYES vs. BIG LOTS; SEDGWICK CMS

The Applicant, Gerald Mayes, sought removal of a trial setting order, arguing the defendant's readiness declaration was insufficient and his medical condition had significantly worsened post-AME. The Workers' Compensation Appeals Board (WCAB) dismissed the petition for removal. This dismissal was primarily based on the applicant's failure to verify the petition, a mandatory requirement. Even if verified, the WCAB would have denied the petition as the applicant failed to demonstrate irreparable harm or significant prejudice.

Petition for RemovalUnverified PetitionDeclaration of ReadinessPermanent and StationaryAME ReportCervical ConditionSurgeryIrreparable HarmSignificant PrejudiceMinute Order
References
0
Case No. MISSING
Regular Panel Decision

Rennoldson v. James J. Volpe Realty Corp.

Gerald Rennoldson, a maintenance worker, was injured after falling from a ladder while performing routine maintenance at Delta Sonic Car Wash. He filed a claim against James F. Volpe, Sr., the property owner, under Labor Law § 240 (1). The Supreme Court initially denied the defendant's cross-motion for partial summary judgment to dismiss this claim. However, the appellate court reversed this decision, ruling that Labor Law § 240 (1) was inapplicable because the plaintiff's task was routine maintenance in a non-construction context, and replacing a leaking tube does not constitute a repair or alteration under the statute.

Ladder FallRoutine MaintenanceProperty Owner LiabilitySummary JudgmentAppellate ReviewConstruction SafetyWorker InjuryLabor Law InterpretationNon-Construction Context
References
4
Case No. MISSING
Regular Panel Decision

Mishk v. Destefano

Gerald Mishk, a member of the City of Middletown Police Department, initiated an action against the City and several officials under 42 U.S.C. §§ 1988 and 1985, claiming his First Amendment rights were violated through retaliation for his speech. The alleged retaliatory actions stemmed from his recommendation against hiring an individual, his advocacy for forming a Narcotics Unit, and his statements during a promotion interview. The defendants moved for summary judgment, asserting qualified immunity for individual defendants. The District Court granted the defendants' motion, concluding that Mishk's interview statements and hiring recommendation did not pertain to matters of public concern. Furthermore, the court found insufficient evidence to establish that his advocacy for a Narcotics Unit led to any adverse employment action, nor did his unit transfer or denial of promotion constitute actionable retaliation.

First AmendmentRetaliation ClaimSummary JudgmentPublic Concern DoctrineGovernment Employee SpeechPolice DepartmentEmployment Law42 U.S.C. Section 198342 U.S.C. Section 1985Qualified Immunity
References
42
Case No. ADJ1017829 (MON 0310518)
Regular
Jan 13, 2011

GERALD SNELL vs. STATE OF CALIFORNIA DEPARTMENT OF MENTAL HEALTH

This order denies Gerald Snell's petition for reconsideration in his workers' compensation claim against the State of California Department of Mental Health. The Workers' Compensation Appeals Board adopted and incorporated the reasoning of the administrative law judge's report, finding no grounds to overturn the original decision. Therefore, Snell's request for review of the prior ruling is officially rejected.

WORKERS' COMPENSATION APPEALS BOARDDENYING RECONSIDERATIONPetition for Reconsiderationadministrative law judgeWCJSTATE OF CALIFORNIA DEPARTMENT OF MENTAL HEALTHGERALD SNELLApplicantDefendantORDER DENYING RECONSIDERATION
References
0
Case No. ADJ8381778
Regular
Oct 18, 2012

GERALD BROWN vs. GOLDEN GATE PETROLEUM, LIBERTY MUTUAL

In this workers' compensation case, the applicant, Gerald Brown, filed a Petition for Removal and a Petition for Disqualification against Golden Gate Petroleum and Liberty Mutual. The defendants subsequently withdrew both petitions after entering into a Compromise and Release agreement. The Workers' Compensation Appeals Board dismissed both petitions as moot, as they were withdrawn and the settlement was approved by the WCJ. Therefore, no further action will be taken on the dismissed petitions.

Petition for RemovalPetition for DisqualificationCompromise and ReleaseWCJWorkers' Compensation Appeals BoardADJ8381778mootwithdrawn petitionsdismissaladministrative law judge
References
0
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