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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 00709 [169 AD3d 1355]
Regular Panel Decision
Feb 01, 2019

Ferguson v. National Gypsum Servs. Co.

Plaintiff Dave Ferguson, an employee of nonparty Remedy Intelligent Staffing, LLC, commenced an action seeking damages for injuries allegedly sustained while working at defendant National Gypsum Services Company's facility. The Supreme Court denied defendant's motion seeking summary judgment dismissing the complaint. On appeal, the Appellate Division, Fourth Department, reversed the Supreme Court's order. The appellate court agreed with the defendant that it had exercised complete and exclusive control over the plaintiff's work, thus establishing a special employment relationship as a matter of law. Therefore, the defendant's motion for summary judgment was granted, and the complaint was dismissed.

Special EmploymentSummary JudgmentAppellate ReviewPersonal InjuryWorkplace InjuryEmployer LiabilityControl TestQuestion of FactMatter of LawRespondent
References
5
Case No. MISSING
Regular Panel Decision

Freitas v. GYPSUM FLOORS OF NEW YORK, INC.

Marli Freitas sued Gypsum Floors of New York, Inc. and Richard W. Phillips for violations of Title VII of the Civil Rights Act of 1964 and New York State Human Rights Law. She alleged intentional discrimination, disparate treatment based on her Brazilian national origin, a hostile work environment due to comments about her accent, and retaliation for opposing the discrimination. Defendants denied the claims, asserting performance issues and claiming Freitas took a voluntary leave. The court denied the defendants' motion for summary judgment, finding genuine issues of material fact regarding the reasons for Freitas' termination and whether she was actually fired.

DiscriminationNational OriginHostile Work EnvironmentRetaliationTitle VIIHuman Rights LawSummary JudgmentEmployment LawFederal CourtNew York Law
References
3
Case No. MISSING
Regular Panel Decision

Maiorana v. National Gypsum Co.

Plaintiff Arlene Maiorana sued defendants alleging her husband's colon cancer was caused by asbestos exposure. A jury initially found in her favor, awarding $4,510,000. Defendants, including United States Mineral Product Company (USMP), subsequently filed post-trial motions for judgment as a matter of law, a new trial, or remittitur. The court granted the motions for judgment as a matter of law, concluding that the plaintiff failed to provide sufficient scientific evidence (epidemiological, experimental, and clinical) to establish a causal link between asbestos exposure and colon cancer under the 'more likely than not' standard. The court also conditionally granted remittitur for excessive damages for pain and suffering and loss of consortium, and denied motions for indemnification by contractors Tishman and Castagna.

Asbestos ExposureColon CancerProximate CauseScientific EvidenceEpidemiologyToxic TortDaubert StandardJudgment as a Matter of LawPost-Trial MotionsRemittitur
References
107
Case No. WCK 64425 WCK 64426 WCK 64427 OAK 304396
Regular
Feb 13, 2008

WAYNE J. LEIN vs. GEORGIA-PACIFIC GYPSUM

The Workers' Compensation Appeals Board granted reconsideration and rescinded the prior Findings and Orders. The case is returned to the trial level for further proceedings and a new decision to address the incomplete findings and lack of award regarding the applicant's industrial injuries. The Board noted the WCJ's own recommendation for reconsideration and procedural deficiencies in the initial decision.

Workers' Compensation Appeals BoardGeorgia-Pacific GypsumWayne J. Leinindustrial injuriesneck injuryright shoulder injuryparascapular straincumulative injurytemporary disabilitypermanent disability
References
0
Case No. MISSING
Regular Panel Decision

Claim of Crutshank v. Gypsum Deck Associates, Inc.

The employer and its insurance carrier appealed a Workmen’s Compensation Board decision from November 30, 1970, which awarded death benefits to the claimant. The Board found the decedent was an outside worker with latitude in his work, the employer supplied and maintained the car, and there was no conclusive evidence of deviation from employment. The accident occurred during snowy, hazardous driving conditions. The Board concluded the accident arose out of and in the course of employment and was not solely due to intoxication. The appellate court affirmed the decision, citing precedents that an unwitnessed accident occurring in the course of employment is presumed to arise out of employment, and noted no conclusive evidence of alcoholic intoxication causing the accident.

Workers' CompensationDeath BenefitsUnwitnessed AccidentIntoxication DefenseCourse of EmploymentArising Out of EmploymentAppellate ReviewAutomobile AccidentOutside WorkerSlippery Roads
References
3
Case No. ADJ7841279 ADJ8227669
Regular
Mar 28, 2016

Cleveland Rayford vs. National Gypsum Company, Ace American Insurance

This order grants the Applicant's petition for reconsideration of the January 12, 2016 decision. The Workers' Compensation Appeals Board requires further review of the factual and legal issues to ensure a just and reasoned decision. All future filings related to this petition must be submitted directly to the Appeals Board Commissioners in San Francisco, not district offices or e-filed. The WCJ cannot act on settlements while reconsideration is pending.

Workers' Compensation Appeals BoardPetition for ReconsiderationGrant of ReconsiderationNational Gypsum CompanyACE American InsuranceCleveland RayfordADJ7841279ADJ8227669Oakland District OfficeStatutory time constraints
References
0
Case No. MISSING
Regular Panel Decision

Wensley v. Argonox Construction Corp.

Plaintiff, an employee of Skyway Roofing of Troy, Inc., was injured during a reroofing project when a section of gypsum roof fell and stretched his arm. He sued Argonox Construction Corporation and Galesi Group, the contractors and owners' group, alleging violations of Labor Law §§ 200, 240, 241 (6) and common-law negligence. The Supreme Court denied dismissal of Labor Law claims but dismissed the negligence claim. On appeal, the court affirmed the applicability of Labor Law § 240 (1) to the gravity-induced fall. However, it dismissed the Labor Law § 241 (6) claim for lack of specific regulation allegations and the Labor Law § 200 claim due to the dismissed common-law negligence. The court also affirmed the denial of Argonox's premature summary judgment motion against Skyway regarding indemnification.

Workers' Compensation LawLabor Law § 240(1)Labor Law § 241(6)Labor Law § 200Common-law NegligenceIndemnificationContributionSummary Judgment MotionAppellate ReviewConstruction Site Safety
References
10
Case No. 2024 NY Slip Op 03455 [228 AD3d 555]
Regular Panel Decision
Jun 25, 2024

Ciaurella v. Trustees of Columbia Univ. in the City of N.Y.

John Ciaurella, a union shop steward and laborer for ACC Construction Corp., was injured while working at the Hammer Building, owned by The Trustees of Columbia University in the City of New York. While erecting caution tape near holes in an interstitial space on the 11th floor, a poorly constructed patch in the gypsum board floor collapsed, causing his right leg to fall through. Ciaurella was using a ladder but was not provided with additional safety equipment like harnesses or safety lines. He moved for partial summary judgment on Labor Law § 240 (1) liability against Columbia, which was initially denied by the Supreme Court, Bronx County. The Appellate Division, First Department, unanimously reversed this decision, granting Ciaurella's motion. The appellate court found that Ciaurella's task exposed him to an elevation-related risk, he was not provided with adequate safety devices, and the risk of collapse, even of a permanent structure, was foreseeable, especially given Columbia's prior concerns about the holes in the floor.

Labor Law § 240 (1)Elevation-related riskCollapsing floorConstruction accidentSummary judgmentAppellate reviewGeneral contractor liabilityOwner liabilityWorkplace safetyInterstitial space
References
5
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