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

Case No. 2017 NY Slip Op 03589 [150 AD3d 1377]
Regular Panel Decision
May 04, 2017

Matter of McKinney v. United States Roofing Corp.

Donald McKinney, a roofer, suffered a work-related back injury. His claim for workers' compensation benefits was established, but payments were later suspended by the Workers' Compensation Board (WCB) due to his failure to provide evidence of attachment to the labor market, despite being directed to do so multiple times. The WCB also denied a request for a lumbar discogram because the submission form was incomplete. The Appellate Division, Third Department, affirmed the WCB's decision, finding that McKinney had proper notice regarding the labor market attachment issue, that the WCB's finding of a moderate disability was supported by substantial evidence, and that the denial of the discogram was justified given the incomplete request.

Workers' CompensationLabor Market AttachmentDisability BenefitsLumbar DiscogramMedical AuthorizationAppellate ReviewBenefit SuspensionIndependent Medical ExaminationWork-Related InjuryNew York Law
References
9
Case No. MISSING
Regular Panel Decision
May 17, 2002

In re the Claim of Kearse

The claimant appealed a decision from the Unemployment Insurance Appeal Board, which upheld its prior ruling that the claimant's request for a hearing was untimely. The claimant had been disqualified from receiving unemployment benefits due to misconduct and charged with an overpayment, but failed to request a review hearing for several months, mistakenly believing her workers' compensation case was related. The Board, upon reconsideration, adhered to its finding that the request was untimely. The Appellate Division affirmed the Board's decision, reiterating that a claimant typically has 30 days to request a hearing unless there is a valid excuse. The court also declined to consider the claimant's belated assertions of post-traumatic stress disorder as a justification for the delay.

Unemployment BenefitsUntimely RequestMisconduct DischargeOverpaymentWorkers' CompensationPost-Traumatic Stress DisorderAppellate ReviewHearing TimelinessAdministrative DecisionNew York Appellate Division
References
4
Case No. MISSING
Regular Panel Decision

Claim of Domanico v. Woodmere Fire District

This case involves an appeal from a decision by the Workers’ Compensation Board, filed April 4, 2005, which denied an employer's request for reimbursement of wages paid to a claimant during a period of disability. The court examined whether a June 24, 2004 notice, issued by the self-insured employer, Woodmere Fire District, containing language about reimbursement, was sufficient as a request under Workers’ Compensation Law § 25 (4) (a). The court found the notice to be sufficient in form. However, a critical issue remained regarding the timeliness of this request; specifically, whether it was filed prior to the compensation award made at the January 7, 2005 hearing. Due to this unresolved issue, the court reversed the Board's decision and remitted the matter for further proceedings to determine the timeliness of the reimbursement request.

Workers' Compensation ReimbursementEmployer Wage ReimbursementDisability WagesTimeliness of Reimbursement RequestWorkers' Compensation LawBoard Decision AppealJudicial ReversalRemittal for Further ProceedingsNew York Workers' CompensationStatutory Interpretation
References
5
Case No. MISSING
Regular Panel Decision

Bland v. Gellman

A claimant had two workers' compensation claims, one managed by the Special Fund for Reopened Cases and the other by Travelers Insurance Company, with liability equally apportioned. The claimant's treating physician requested a variance for aquatic therapy, which both carriers denied. Although a Workers' Compensation Law Judge approved the treatment, the Workers' Compensation Board reversed, asserting that the variance request form (MG-2) was not properly served on the Board and that the review request was untimely. The Appellate Division reversed the Board's decision, finding substantial evidence that the MG-2 form was timely filed with the Board, referencing both claim numbers, and that the request for review of the denial was also timely. The court concluded that the Board's determination lacked substantial evidence and remitted the matter for further proceedings.

Variance RequestAquatic TherapyClaim DenialMG-2 FormTimely FilingAdministrative LawAppellate ReviewSpecial Fund for Reopened CasesTravelers Insurance CompanySubstantial Evidence
References
3
Case No. ADJ9755370
Regular
Aug 10, 2017

BERNARDINO GARDEA vs. CITY OF PASADENA

This case concerns the City of Pasadena's request for reconsideration of a Workers' Compensation Appeals Board (WCAB) decision regarding the applicant's occupational group number. The WCJ initially recommended dismissal of the reconsideration petition as untimely. However, the defendant has now requested leave to file a supplemental petition to address issues raised in the WCJ's report. The WCAB has granted the defendant's request to file this supplemental petition. The defendant is ordered to file the supplemental petition within 20 days, either by mail or via EAMS, to avoid rejection.

Workers' Compensation Appeals BoardSupplemental PetitionReconsiderationOccupational Group NumberAdministrative Law JudgePetition for ReconsiderationWCAB Rule 10848Electronic Adjudication Management SystemEAMSCity of Pasadena
References
0
Case No. ADJ9099536
Regular
Sep 09, 2014

MARIA SOTO vs. CCC HOSPITALITY PISMO, LLC dba SEACREST OCEANFRONT HOTEL, STAR INSURANCE COMPANY

In this case, the defendant hospital sought removal after the WCJ ordered a chiropractic QME panel, arguing chiropractors were unqualified for the applicant's knee injury. The defendant had initially requested an orthopedic surgeon QME, but their request was rejected by the Medical Unit as incomplete. The Appeals Board found the defendant's initial request substantially complied with regulations and was improperly rejected. Therefore, the Board granted removal, rescinded the WCJ's order, and directed the Medical Unit to issue a panel of orthopedic surgery QMEs.

Petition for RemovalPQMEMedical UnitChiropractic QMEOrthopedic Surgery QMERequest for QME PanelAdministrative Director Rule 30(b)Labor Code section 4062.2Messele v. Pitco FoodsInc.
References
1
Case No. MISSING
Regular Panel Decision

Gorzynski v. Jetblue Airways Corp.

Plaintiff, a former employee of JetBlue Airways Corporation, initiated an employment discrimination lawsuit citing age and gender discrimination and retaliation. She moved to use an incomplete deposition transcript of Lee Gojmerae, a former co-worker, at trial, a request opposed by the Defendant. The court found that the Defendant had waived objections to the transcript's completeness by failing to promptly file a motion to suppress. Concluding that Ms. Gojmerae's testimony was highly probative and the Defendant had not demonstrated prejudice, the court granted the Plaintiff's motion. This decision allows the use of the incomplete deposition testimony, with potential jury instructions regarding its incompleteness and the possibility for Ms. Gojmerae to testify via contemporaneous transmission.

Employment DiscriminationAge DiscriminationGender DiscriminationRetaliationDeposition TestimonyAdmissibility of EvidenceMotion in LimineFederal Rules of Civil ProcedureWaiver of ObjectionRule of Completeness
References
7
Case No. MISSING
Regular Panel Decision

Claim of Lewis v. Stewart's Marketing Corp.

A claimant sustained serious injuries in 1997 and was awarded workers' compensation benefits. In 2008, a dispute arose regarding the permanency and degree of disability, with conflicting medical reports submitted by the claimant (permanent total disability) and the employer (moderate partial disability). The Workers' Compensation Law Judge denied the employer's request to cross-examine the claimant and his physician, subsequently ruling that the claimant had a permanent total disability. Upon appeal, the Workers’ Compensation Board affirmed this decision. The appellate court reversed the Board's decision, emphasizing that denying the employer's timely request for cross-examination was improper, especially given the conflicting medical evidence, and remitted the matter for further proceedings.

Workers’ CompensationDisability AssessmentPermanent Total DisabilityIndependent Medical ExaminationCross-Examination RightsProcedural Due ProcessConflicting Medical EvidenceRemittalAppellate ReviewBoard Decision Reversal
References
3
Case No. MISSING
Regular Panel Decision

Ramaglia v. New York State Department of Transportation

Petitioners, including union representative Joseph Ramaglia, requested payroll records from a steel company under the Freedom of Information Law (FOIL) through the Department of Transportation (DOT). They sought to determine if the steel company, a contractor for overpass replacement on the Long Island Expressway, was violating prevailing wage laws. DOT denied the request, stating it neither possessed nor was required to collect these records, as the steel company was merely a materials supplier, not directly involved in public works construction. Petitioners commenced a CPLR article 78 proceeding to compel DOT to obtain and produce the records. The Supreme Court dismissed their application, agreeing that DOT had no obligation to the supplier's records. On appeal, the court affirmed, ruling that the prevailing wage law does not apply to contracts for the sale of goods, even custom or shop-finished products, especially when such work is a normal part of manufacturing and not typically done on-site.

Freedom of Information LawFOIL RequestPublic Works ContractPrevailing Wage LawMaterials SupplierPayroll RecordsCPLR Article 78Administrative LawAppellate ReviewLabor Law
References
5
Case No. MISSING
Regular Panel Decision

Claim of Metzger v. Champion International Corp.

Claimant, a pulp tester, sustained a right hip and thigh injury at work in 1994. After initial hearings and the establishment of the claim, the Workers’ Compensation Law Judge (WCLJ) directed parties to file medical opinions on permanency. The carrier repeatedly failed to present its own expert or obtain a consultant's opinion despite multiple opportunities. The WCLJ and the Workers’ Compensation Board denied the carrier's requests for adjournments, awarding the claimant a 66 2/3% schedule loss of use. On appeal, the court affirmed the Board’s decision, finding no abuse of discretion in denying the carrier's request, citing its lack of preparedness.

Workers' CompensationAdjournment DenialMedical OpinionPermanencySchedule Loss of UseCarrier DelayAppellate ReviewDiscretionary RulingEvidence SubmissionProcedural Due Process
References
4
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