Updated Daily

Case Law Database

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

Case No. 166 AD3d 1449

Regular Panel Decision

Nov 29, 2018

Davis v. Eab-Tab Enters.

Plaintiff Kody Davis, a laborer, was injured while working for defendant Thomas Bender in a building owned by EAB-TAB Enterprises. Davis and his spouse filed a complaint alleging negligence and Labor Law violations. The defendants' insurer, Utica First Insurance Company, denied coverage based on an employee exclusion. After plaintiffs amended their complaint to assert only negligence, Utica First moved for summary judgment to dismiss the third-party complaint, arguing no obligation to defend or indemnify. The Supreme Court denied the motion, deeming Davis an independent contractor. The Appellate Division affirmed the denial, finding a triable issue of fact as to Davis's employment status, thus precluding summary judgment.

Summary JudgmentEmployee ExclusionIndependent Contractor StatusInsurance Coverage DisputeLabor LawNegligenceThird-Party ActionAppellate DivisionTriable Issue of FactEmployer-Employee Relationship

References

Case No. MISSING

Regular Panel Decision

Abramo v. Navistar International Transportation Corp.

Charles N. Abramo, the plaintiff, sustained injuries after falling due to a grip tab on a truck manufactured by Navistar International Transportation Corp. Navistar had prior knowledge of similar complaints and had redesigned the grip tab in later models, but no recall notices were issued for the specific truck involved. Plaintiffs sought to compel Navistar to produce recall notices for unrelated truck components and allow depositions of additional employees. The Supreme Court denied this motion. The appellate court affirmed the denial, stating that unrelated recall notices are not discoverable and that the staff engineer demonstrated sufficient knowledge, justifying the refusal for additional depositions.

Product LiabilityDiscovery DisputeRecall NoticesPretrial DepositionsTruck DefectGrip TabAppellate ReviewUnanimous DecisionSupreme Court OrderEvidence Admissibility

References

Case No. 03A01-9902-CV-00049

Regular Panel Decision

Nov 08, 1999

William D. Hunley and wife, Brenda K. Hunley, and Velvac, Inc. v. Silver Furniture Mfg. Co. and Tab Service Corp. - Dissenting

Judge Charles D. Susano, Jr. dissents from the majority's decision, arguing that a workers' compensation carrier's subrogation rights should not automatically extend to a spouse's loss of consortium settlement. He emphasizes that the relevant statute only covers recoveries by the worker or those to whom the worker's action survives, and a loss of consortium claim is a separate cause of action by the spouse, not the worker. The judge critiques the reliance on outdated case law (Sexton v. Tri-Cities Insulation, Inc. and Beam v. Maryland Casualty Co.) and suggests that more recent Supreme Court precedent (Jordan v. Baptist Three Rivers Hosp.) implies a shift in how wrongful death and derivative claims are viewed regarding subrogation. He proposes remanding the case to determine the reasonableness of the allocation of settlement funds to Mrs. Hunley's claim, suggesting that such allocations should not be a sham to avoid subrogation.

Workers' CompensationSubrogation RightsLoss of ConsortiumDerivative ClaimSpousal ClaimsSettlement AllocationDissenting OpinionAppellate CourtTennessee LawStatutory Interpretation

References

Case No. ADJ7261203

Regular

Oct 11, 2012

ANGELINA KENDRICK McGEE vs. STATE OF CALIFORNIA, DEPARTMENT OF JUSTICE, Legally Uninsured, Administered by STATE COMPENSATION INSURANCE FUND, STATE CONTRACT SERVICES

The defendant sought reconsideration of a workers' compensation award, challenging the inclusion of a grip strength rating for the applicant's left hand. The Appeals Board granted reconsideration, finding the Agreed Medical Examiner did not adequately justify departing from the AMA Guides' limitations on rating grip strength. Consequently, the applicant's permanent disability rating was reduced from 56% to 51% by excluding the grip strength impairment. The award for permanent disability indemnity and attorney fees was amended accordingly.

Workers' Compensation Appeals BoardAngelina Kendrick McGeeState of California Department of JusticeState Compensation Insurance FundOpinion and Order Granting ReconsiderationFindings and AwardOffice Assistant SupervisorPermanent DisabilityCervical SpineLeft Hand and Wrist

References

Case No. ADJ834041

Regular

Jan 24, 2011

DAWN DEANS vs. PALMDALE WATER DISTRICT; Permissibly Self-Insured, Administered by ACWA/JPIA

The Workers' Compensation Appeals Board granted reconsideration of a prior award finding 13% permanent disability for the applicant's right elbow and wrist injury. Defendant argued the award was not supported by substantial medical evidence. The Board found the Qualified Medical Evaluator's (PQME) report deficient due to inadequate grip strength testing, misinterpretation of AMA Guides on grip strength differences, and failure to explain why grip loss was the primary rating factor. Consequently, the prior award was rescinded, and the case was returned to the trial level for further medical development and a new decision.

Workers' Compensation Appeals BoardPalmdale Water DistrictPermissibly Self-InsuredACWA/JPIAFindings and AwardPermanent Disability RatingSubstantial Medical EvidenceQualified Medical EvaluatorAMA GuidesGrip Strength

References

Case No. ADJ360205 (LBO 0384980)

Regular

Aug 05, 2010

Gurdev Malhotra vs. STATE OF CALIFORNIA, DEPARTMENT OF DEVELOPMENTAL SERVICES FAIRVIEW; Legally Uninsured, CONTRACT SERVICES

The Workers' Compensation Appeals Board granted reconsideration of a WCJ's advisory opinion concerning permanent disability rating for grip loss. Defendant argued the WCJ erred by allowing rating for grip loss when range of motion was present, and that the QME's reports did not support grip loss rating. The Board rescinded the WCJ's findings, remanding the case for further proceedings to ensure the WCJ follows the established process for issuing rating instructions based on substantial medical evidence, as clarified in *Blackledge v. Bank of America*. The ultimate determination of permanent disability requires a proper QME opinion and subsequent rating instructions from the WCJ.

Workers' Compensation Appeals BoardGurdev MalhotraState of California Department of Developmental ServicesLegally UninsuredContract ServicesPermanent Disability RatingGrip LossAMA GuidesQualified Medical EvaluatorQME

References

Case No. MISSING

Regular Panel Decision

Texas Ass'n of Business v. Texas Air Control Board

The Texas Association of Business (TAB) filed a declaratory judgment action against the Texas Air Control Board and the Texas Water Commission, challenging the constitutionality of statutes allowing these agencies to levy civil penalties. Specifically, TAB argued that provisions requiring a supersedeas bond or cash deposit for judicial review violated the open courts and jury trial provisions of the Texas Constitution. The trial court denied TAB's relief. On appeal, the Supreme Court of Texas affirmed the trial court's decision regarding the jury trial challenge, concluding that no right to a jury trial exists for appeals from administrative environmental adjudications. However, the Court reversed the trial court on the open courts challenge, holding that mandating a bond or cash deposit as a prerequisite to judicial review was an unreasonable and unconstitutional restriction on court access.

Constitutional LawAdministrative LawStandingJudicial ReviewOpen Courts ProvisionJury Trial RightEnvironmental LawCivil PenaltiesTexas ConstitutionSeparation of Powers

References

Case No. ADJ1793931 (OAK 0336568)

Regular

Apr 12, 2010

MICHAEL KESTEL vs. CAPITOL BUICK PONTIAC GMC, ZENITH, REPUBLIC INDEMNITY

This case concerns an appeal regarding the applicant's permanent disability rating for upper extremity injury. The defendants contended that the original $24\%$ rating was improperly calculated, specifically challenging the inclusion of grip loss as a factor. The Appeals Board found the Agreed Medical Evaluator's opinion on grip loss to be speculative and not substantial evidence under the *Almaraz II* decision. Consequently, the Board granted reconsideration, amended the award to $16\%$ permanent disability, and affirmed the remainder of the original findings.

AMEAgreed Medical EvaluatorAMA Guidespermanent disability ratingWPIwhole person impairmentgrip lossupper extremity impairmentAlmaraz IIsubstantial evidence

References

Case No. ADJ9526635

Regular

Feb 21, 2017

SISSON STEWART vs. CALIFORNIA STATE PRISON, STATE COMPENSATION INSURANCE FUND

The Appeals Board granted reconsideration and affirmed the original award, but remanded the case to defer the issue of permanent disability. This decision arose because the treating physician's permanent disability rating, based on grip strength loss, was deemed not substantial medical evidence under AMA Guides. The Appeals Board found that the doctor failed to adequately justify the use of grip strength over range of motion or other objective findings, and further development of the medical record is required. Consequently, the case returns to the trial level for further proceedings on permanent disability.

Workers' Compensation Appeals BoardPermanent DisabilityMedical EvidenceTreating PhysicianQualified Medical EvaluatorAMA GuidesGrip StrengthRange of MotionFindings and AwardPetition for Reconsideration

References

Case No. ADJ2453188 (LBO 0391424)

Regular

Jul 20, 2009

WILLIAM GILBERT vs. CITY OF LOS ANGELES

The Workers' Compensation Appeals Board granted reconsideration and rescinded the prior award, finding the medical evidence insufficient. The applicant sought a higher permanent disability rating than the $12\%$ awarded, arguing the judge erred in calculating impairment and omitting pain and grip strength adjustments recommended by the Agreed Medical Evaluator. The Board returned the case to the trial level for further development of the medical record, requiring the evaluator to fully explain their findings on impairment, pain, and grip strength, and to consider *Almaraz* principles regarding equitable permanent disability awards.

Workers' Compensation Appeals BoardCumulative InjuryPermanent DisabilityLeft Median Sensory NeuropathyLeft Ulnar Motor NeuropathyAgreed Medical EvaluatorOrthopedistAMA GuidesImpairment RatingGrip Strength

References

Showing 1-10 of 35 results

Ready to streamline your practice?

Apply these legal strategies instantly. CompFox helps you find decisions, analyze reports, and draft pleadings in minutes.

Updated Daily

Case Law Database

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

Case No. 166 AD3d 1449

Regular Panel Decision

Nov 29, 2018

Davis v. Eab-Tab Enters.

Summary JudgmentEmployee ExclusionIndependent Contractor StatusInsurance Coverage DisputeLabor LawNegligenceThird-Party ActionAppellate DivisionTriable Issue of FactEmployer-Employee Relationship

References

Case No. MISSING

Regular Panel Decision

Abramo v. Navistar International Transportation Corp.

Product LiabilityDiscovery DisputeRecall NoticesPretrial DepositionsTruck DefectGrip TabAppellate ReviewUnanimous DecisionSupreme Court OrderEvidence Admissibility

References

Case No. 03A01-9902-CV-00049

Regular Panel Decision

Nov 08, 1999

William D. Hunley and wife, Brenda K. Hunley, and Velvac, Inc. v. Silver Furniture Mfg. Co. and Tab Service Corp. - Dissenting

Workers' CompensationSubrogation RightsLoss of ConsortiumDerivative ClaimSpousal ClaimsSettlement AllocationDissenting OpinionAppellate CourtTennessee LawStatutory Interpretation

References

Case No. ADJ7261203

Regular

Oct 11, 2012

ANGELINA KENDRICK McGEE vs. STATE OF CALIFORNIA, DEPARTMENT OF JUSTICE, Legally Uninsured, Administered by STATE COMPENSATION INSURANCE FUND, STATE CONTRACT SERVICES

References

Case No. ADJ834041

Regular

Jan 24, 2011

DAWN DEANS vs. PALMDALE WATER DISTRICT; Permissibly Self-Insured, Administered by ACWA/JPIA

References

Case No. ADJ360205 (LBO 0384980)

Regular

Aug 05, 2010

Gurdev Malhotra vs. STATE OF CALIFORNIA, DEPARTMENT OF DEVELOPMENTAL SERVICES FAIRVIEW; Legally Uninsured, CONTRACT SERVICES

References

Case No. MISSING

Regular Panel Decision

Texas Ass'n of Business v. Texas Air Control Board

Constitutional LawAdministrative LawStandingJudicial ReviewOpen Courts ProvisionJury Trial RightEnvironmental LawCivil PenaltiesTexas ConstitutionSeparation of Powers

References

Case No. ADJ1793931 (OAK 0336568)

Regular

Apr 12, 2010

MICHAEL KESTEL vs. CAPITOL BUICK PONTIAC GMC, ZENITH, REPUBLIC INDEMNITY

AMEAgreed Medical EvaluatorAMA Guidespermanent disability ratingWPIwhole person impairmentgrip lossupper extremity impairmentAlmaraz IIsubstantial evidence

References

Case No. ADJ9526635

Regular

Feb 21, 2017

SISSON STEWART vs. CALIFORNIA STATE PRISON, STATE COMPENSATION INSURANCE FUND

References

Case No. ADJ2453188 (LBO 0391424)

Regular

Jul 20, 2009

WILLIAM GILBERT vs. CITY OF LOS ANGELES

References

Showing 1-10 of 35 results

Ready to streamline your practice?

Apply these legal strategies instantly. CompFox helps you find decisions, analyze reports, and draft pleadings in minutes.