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

Case No. ADJ1941485 (VNO 0263845) ADJ4137418 (VNO 0270976) ADJ1018222 (MON 0140131)
Regular
Dec 15, 2008

GERTRUDE CHISM vs. K-MART/SEARS HOLDING CORPORATION, Permissibly Self-Insured Administered by SEDGWICK CLAIMS MANAGEMENT SERVICES

The Appeals Board dismissed the defendant's petition to remove WCJ Zarett as moot due to his retirement, and denied the request for a commissioner's hearing on sanctions as premature. The Board remanded the case to the trial level for a full evidentiary hearing on the defendant's allegations regarding the applicant's attorneys, as these factual issues are best addressed by a new Workers' Compensation Judge. The defendant's numerous petitions for removal, vacating hearings, and stays were largely dismissed or denied.

Workers' Compensation Appeals BoardGertrude ChismK-Mart/Sears Holding CorporationSedgwick Claims Management ServicesPetition for Commissioner's HearingRemoval of Judge ZarettVacate HearingStay ProceedingsImposition of SanctionsGuardian Ad Litem
References
1
Case No. MISSING
Regular Panel Decision

L.I. Head Start Child Development Services, Inc. v. Economic Opportunity Commission of Nassau County, Inc.

This case, a "MEMORANDUM OF DECISION AND ORDER," addresses a class action brought by L.I. Head Start Child Development Services, Inc. and Paul Adams against Community Action Agencies Insurance Group (CAAIG), the Economic Opportunity Commission of Nassau County, Inc. (EOC Nassau), the Economic Opportunity Council of Suffolk County, Inc. (EOC Suffolk), Yonkers Community Action Program, Inc. (Yonkers CAP), and the Estate of John L. Kearse. The plaintiffs alleged various breaches of fiduciary duty under ERISA, including the diversion of reserves, failure to adequately fund the plan, failure to collect delinquent contributions, and unjust enrichment. The court found in favor of the defendants on the claims of reserve diversion and unjust enrichment. However, the defendants were found liable for failing to adequately fund the CAAIG Plan, with damages to be determined in a future hearing, and EOC Nassau, Yonkers CAP, and Kearse's Estate were held liable for $9,000 plus interest for failing to collect delinquent contributions from EOC Suffolk.

ERISA Fiduciary DutyEmployee Benefit PlanDelinquent ContributionsUnjust EnrichmentCo-Fiduciary LiabilityTrust Agreement AmendmentsPlan ReservesClass Action LawsuitEastern District CourtPension and Welfare Funds
References
36
Case No. MISSING
Regular Panel Decision

Hearring v. Sliwowski

Melissa Hearring, as next friend of a minor, B.H., filed a § 1983 action against school nurse Karen Sliwowski and the Metropolitan Government of Nashville Davidson County, Tennessee, alleging a Fourth Amendment violation for an intrusive visual search of B.H.'s labia without consent or emergency. The Magistrate Judge recommended granting summary judgment for defendants, citing qualified immunity for Sliwowski and insufficient evidence against Metro. However, the District Judge set aside this recommendation, concluding that B.H.'s Fourth Amendment right was clearly established at the time of the search. The Court denied the defendants' motion for summary judgment, finding that Metro could be liable for deliberate indifference to the need for clear policies regarding student searches.

Fourth AmendmentQualified ImmunitySchool SearchStrip SearchMinor's RightsDeliberate IndifferenceMunicipal LiabilitySchool Nurse ConductParental ConsentMedical Examination
References
79
Case No. 2015-02-0155, 2015-02-0156, 40357-2015, 31700-2015
Regular Panel Decision
Apr 13, 2018

Muse, Estel Blackie v. Campbell County

Estel "Blackie" Muse, an employee of Campbell County, filed claims for multiple injuries, including his back, hearing loss, right shoulder, bilateral upper extremities, and occupational lung disease. The employer accepted the back and hearing-loss claims but denied the others. The Court of Workers’ Compensation Claims at Knoxville, presided by Judge Lisa A. Lowe, denied Mr. Muse's claims for his right shoulder, bilateral upper extremity, and occupational lung disease, finding he failed to establish compensability. However, the court granted permanent partial disability benefits for his back and hearing loss based on accepted medical opinions, incorporating increased benefits and applying a social security offset. The total award for permanent partial disability benefits was $79,073.37, and future medical benefits for his back and hearing loss were also awarded.

Workers' CompensationPermanent Partial DisabilityBack InjuryHearing LossOccupational Lung DiseaseRight Shoulder InjuryBilateral Upper Extremities InjuryMedical CausationPreponderance of EvidenceIndependent Medical Evaluation (IME)
References
5
Case No. 2016-03-0523
Regular Panel Decision
Nov 30, 2016

Hanneken, Kevin v. Consolidated Nuclear Services, LLC

Mr. Kevin Hanneken, a 61-year-old machinist, sought workers' compensation for binaural hearing loss, claiming his employer, Consolidated Nuclear Services, LLC (CNS), was liable for an aggregate 14% permanent medical impairment, which included a pre-existing 5% impairment. The central legal issue was CNS's liability for this pre-existing condition, given that Mr. Hanneken had an ascertainable rating at the start of his employment. The court ruled that the 'last injurious injury' rule does not apply under the Workers' Compensation Reform Act of 2013 when a pre-existing impairment is readily ascertainable. Consequently, the court found CNS not liable for Mr. Hanneken's pre-existing 5% hearing loss. Mr. Hanneken was awarded nine percent permanent partial disability for the increase in hearing loss during his employment with CNS, amounting to $34,749.00 in benefits, along with medical treatment for his bilateral hearing loss.

Hearing LossOccupational Noise ExposurePre-existing ConditionLast Injurious Injury RuleTennessee Workers' Compensation Reform Act of 2013Permanent Partial DisabilityMedical ImpairmentCausationEmployer LiabilityMachinist
References
5
Case No. MISSING
Regular Panel Decision

United States Equal Employment Opportunity Commission v. Johnson & Higgins

The Equal Employment Opportunity Commission (EEOC) sued Johnson & Higgins (J&H) over a mandatory pre-65 retirement policy that violated the Age Discrimination in Employment Act (ADEA). The Court previously found J&H liable and issued an injunction. J&H then sought partial summary judgment to dismiss claims for monetary and injunctive relief based on waivers signed by thirteen retired employee-directors, who had received $1,000 in exchange for waiving ADEA rights. The retired directors later repudiated these waivers, citing conflict of interest, economic duress, and undue influence. The EEOC opposed the waivers, arguing inadequate consideration, lack of voluntariness, and that J&H negotiated them without EEOC participation after a finding of liability. The District Court denied J&H's motion for summary judgment, finding material issues of fact regarding the adequacy of consideration and the voluntariness of the waivers. The court also held that waivers entered into after a finding of liability and without EEOC participation are invalid as a matter of law.

Age Discrimination in Employment ActADEAWaiversSummary JudgmentKnowing and VoluntaryConsiderationOlder Workers Benefit Protection ActOWBPARepudiation of WaiversEEOC Litigation
References
16
Case No. MISSING
Regular Panel Decision

Tuttle v. Housing Opportunities Management & Essential Services, Inc.

The plaintiff, a 30-year-old man diagnosed with retardation, suffered severe burns from an assault by a friend in his apartment. He resided in an intensive supportive apartment provided by Housing Opportunities Management and Essential Services, Inc. (H.O.M.E.S.), a non-profit organization offering housing for individuals with psychiatric or developmental conditions within a state-authorized community living program. While H.O.M.E.S. staff and other therapists had approved his move to this less restrictive setting, concerns arose regarding friends taking advantage of him, leading H.O.M.E.S. to initiate a discharge process for him to move to a more supervised environment, which was not completed before the incident. The court deliberated on whether H.O.M.E.S. owed a duty to protect the plaintiff from a third party's criminal acts. Citing Mental Hygiene Law and various precedents, the court concluded that H.O.M.E.S. had no such special duty, emphasizing that the community care system prioritizes individual liberties and the assault by the friend was not reasonably foreseeable. Consequently, the motion to dismiss the complaint was granted.

Community HousingDevelopmental DisabilitiesPsychiatric ConditionsNegligenceDuty of CareForeseeabilityThird-Party Criminal ActsMental Hygiene LawCommunity Care SystemResidential Programs
References
10
Case No. MISSING
Regular Panel Decision

Bowaters Southern Paper Corp. v. Equal Employment Opportunity Commission

This case involves a petition by Bowaters Southern Paper Corporation to set aside a demand for access to evidence by the Equal Employment Opportunity Commission (EEOC), and a cross-petition by the EEOC to enforce its demand. The dispute arose after a Commissioner's charge alleging unlawful employment practices against Bowaters was filed, leading to an EEOC investigation and subsequently a demand for extensive personnel records. Bowaters contended the demand was invalid because the underlying charge failed to "set forth the facts upon which it is based" as required by the Civil Rights Act of 1964. The Court found that the Commissioner's charge, which merely listed general discriminatory practices without supporting facts, was legally insufficient to invoke the Commission's investigative jurisdiction. Consequently, the Court denied the EEOC's motion for enforcement and set aside the demand for access to evidence, concluding that a valid charge is a jurisdictional prerequisite for an investigation.

Equal Employment OpportunityCivil Rights Act of 1964Administrative LawInvestigative AuthorityJudicial ReviewSufficiency of ChargeDemand for EvidenceUnlawful Employment PracticesRacial DiscriminationJurisdictional Prerequisite
References
7
Case No. MISSING
Regular Panel Decision

Equal Employment Opportunity Commission v. American Express Publishing Corp.

The Equal Employment Opportunity Commission (EEOC) filed an action against American Express Publishing Corporation, alleging age discrimination in the termination of J. Stewart Lahey's employment, violating the ADEA. American Express moved for summary judgment, arguing Lahey had released his ADEA claim by signing an agreement for severance pay. A previous summary judgment motion was denied due to factual issues regarding the knowing and voluntary nature of the release. The court, applying factors such as Lahey's education, time to review the agreement, role in negotiation, and clarity of terms, found that while some factors favored dismissal, significant factual disputes remained. These disputes include the actual time Lahey possessed the release, whether he genuinely negotiated its terms, and the extent and understanding of the consideration received. Therefore, the court denied American Express's renewed motion for summary judgment, concluding these issues require a trial.

Age DiscriminationEmployment TerminationRelease AgreementSummary JudgmentVoluntary WaiverKnowing WaiverSeverance PayFactual DisputeADEAEmployee Rights
References
4
Case No. 2017-05-0721
Regular Panel Decision
Mar 22, 2018

Robertson, Beverly vs. Edwards Oil Of Lawrenceburg

Beverly Robertson filed a claim against Edwards Oil of Lawrenceburg and Accident Fund Gen. Ins. Co. An Expedited Hearing was held on March 20, 2018. During the hearing, Ms. Robertson's counsel acknowledged that no medical or temporary disability benefits were in dispute; instead, the employee sought a determination of her correct average weekly wage. The Court, citing Tennessee Code Annotated section 50-6-239(d)(1), found it could only conduct expedited hearings regarding temporary disability or medical benefits, which were not in dispute. Therefore, the Court denied Ms. Robertson's claim at this time and ordered her to file a Request for Scheduling Hearing or a valid Request for Expedited Hearing within thirty days.

Workers' CompensationExpedited HearingAverage Weekly WageClaim DenialProcedural RulingTennessee LawDisability BenefitsMedical BenefitsJurisdiction
References
1
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