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

Case No. MISSING
Regular Panel Decision

Diamond D Construction Corp. v. New York State Department of Labor (DOL) Bureau of Public Works

This decision addresses Diamond D Construction Corp.'s motion for reconsideration, challenging the court's prior denial of a preliminary injunction. The court re-evaluates its stance on Eleventh Amendment immunity, concluding that Diamond D's claim for prospective injunctive relief against the Department of Labor's enforcement actions is not barred, distinguishing previous cases like Tekkno and Yorktown. While affirming the applicability of the Younger abstention doctrine, the court acknowledges that a 'narrow' exception for bad faith or harassment by the DOL might apply. To resolve factual disputes regarding whether the DOL acted in bad faith or violated Diamond D's substantive due process rights, the court grants the motion for reconsideration in part and orders evidentiary hearings.

Federal CourtEleventh AmendmentYounger AbstentionDue ProcessProcedural Due ProcessSubstantive Due ProcessMotion for ReconsiderationPreliminary InjunctionState SovereigntyEvidentiary Hearing
References
17
Case No. MISSING
Regular Panel Decision

Nagel v. D & R REALTY CORP.

Bruce Nagel, an elevator safety inspector, suffered injuries after slipping on oil during a two-year safety test. He and his wife sued D & R Realty Corp., the building owner, alleging violations of Labor Law §§ 200, 240 (1), and 241 (6), particularly Industrial Code § 23-1.7 (d). The claims under §§ 200 and 240 (1) were withdrawn. Both the Supreme Court and the Appellate Division granted summary judgment to the defendant, ruling Nagel's work was routine maintenance, not construction, demolition, or excavation under Labor Law § 241 (6). The Court of Appeals affirmed, holding that Labor Law § 241 (6) protections do not extend to maintenance work outside the construction context.

Elevator accidentLabor LawSection 241(6)Routine maintenanceConstruction workDemolition workExcavation workIndustrial CodeSafety inspectionBuilding owner liability
References
6
Case No. 2016 NY Slip Op 08114
Regular Panel Decision
Dec 01, 2016

Matter of Kent D. (Rachel D.)

Petitioner Kent D. appealed an order from Family Court, New York County, which denied his motion for a forensic evaluation and granted the cross motion to dismiss his petition for visitation with his child. The background reveals that in February 2008, Kent D. stabbed Rachel D., the mother, seven times in front of their child, leading to his conviction for assault and child endangerment and an 11-year prison sentence. A 19-year order of protection was issued, prohibiting contact with the child. The Family Court had previously awarded custody to the mother, and a 2012 divorce judgment affirmed no visitation rights for Kent D. The Appellate Division affirmed the Family Court's decision, finding that Kent D. failed to make an evidentiary showing of changed circumstances required for a visitation hearing, and his claims of completing an anger management program were unsubstantiated. The court also noted the child's continuing symptoms of post-traumatic stress disorder and desire not to see him.

Visitation RightsChild CustodyOrder of ProtectionDomestic ViolenceAssault ConvictionChanged CircumstancesForensic EvaluationAppellate ReviewFamily LawPost-Traumatic Stress Disorder
References
2
Case No. ADJ7723776
Regular
Nov 02, 2013

DEBRA CALORA vs. COUNTY OF SAN LUIS OBISPO

The Workers' Compensation Appeals Board granted reconsideration and amended the original award. The WCJ had found the applicant sustained a 100% permanent disability and was entitled to a 15% increase in indemnity under Labor Code section 4658(d) for the employer's failure to offer work. However, the Board determined that Labor Code section 4658(d)'s provisions, including the 15% increase, do not apply to awards of 100% permanent disability. Therefore, the applicant is not entitled to the 15% increase in permanent disability indemnity.

Workers' Compensation Appeals BoardPetition for ReconsiderationFindings and AwardCookRight upper extremityBilateral carpal tunnelPermanent disabilityLabor Code section 4658(d)Permanent total disabilityLifetime award
References
0
Case No. ADJ6413657
Regular
Feb 26, 2009

LUIS PENA vs. CITY OF SANTA ROSA

The City of Santa Rosa sought reconsideration of a Stipulated Award that adjusted permanent disability payments under Labor Code section 4658(d) starting March 25, 2008. The Board denied the petition, finding the employer's argument that the 15% reduction applied retroactively to all payments was erroneous. The employer failed to comply with statutory requirements for providing notice of permanent disability status and commencing timely payments after temporary disability ended. Consequently, the employer is not entitled to the benefit of the Labor Code section 4658(d) reduction due to its own statutory non-compliance.

Workers' Compensation Appeals BoardStipulated AwardPermanent Disability IndemnityLabor Code section 4658(d)Police OfficerIndustrial InjuryLow BackPermanent and StationaryOffer of Regular WorkLabor Code section 4061
References
1
Case No. ADJ7852424, ADJ7938790
Regular
Mar 24, 2015

KEITH RAKONCZA vs. COUNTY OF STANISLAUS

This case involves a petition for reconsideration by the defendant regarding a workers' compensation award for Keith Rakoncza. The Board denied reconsideration, adopting the judge's report which found that the defendant's arguments regarding apportionment and the applicability of Labor Code section 4658(d)(2) were unfounded. The judge found that the defendant's attempt to apportion disability retroactively was unjust and not supported by substantial evidence. Additionally, the judge determined that Labor Code section 4658(d)(2) applied because the defendant failed to make a timely offer of work within 60 days of the applicant's permanent and stationary date.

Workers' Compensation Appeals BoardKeith RakonczaCounty of StanislausYork Risk Services GroupInc.ADJ7852424ADJ7938790Petition for ReconsiderationLabor Code section 4658(d)(2)heart injury
References
1
Case No. ADJ8062477
Regular
Apr 08, 2025

ANTONIO MARTINEZ vs. BARODA FARMS, ZENITH INSURANCE COMPANY

Antonio Martinez sustained an industrial injury to his cervical, thoracic, and lumbar spine while working for Baroda Farms, resulting in a 66% permanent partial disability award. Defendant Zenith Insurance Company petitioned for reconsideration of the initial Findings and Award (F&A) concerning apportionment and the application of Labor Code section 4658(d). The Workers' Compensation Appeals Board granted reconsideration, affirming the F&A but amending it to defer the issues of Labor Code section 4658(d) and attorney fees. The case has been returned to the trial level for further proceedings to ensure all parties receive due process.

WCABPetition for ReconsiderationFindings and AwardPermanent Partial DisabilityApportionmentLabor Code Section 4658(d)Substantial Medical EvidencePQMEMedical OpinionReasonable Medical Probability
References
8
Case No. ADJ608971 (SAC 0345754)
Regular
Mar 22, 2010

ROGELIO ROJAS vs. ALLIED WASTE INDUSTRIES INC, AMERICAN HOME ASSURANCE

This case involved a dispute over a 15% increase in permanent disability benefits for an employee who sustained a 100% permanent disability. The defendant argued this increase, under Labor Code section 4658(d), did not apply to total permanent disability awards and challenged the retroactive date for annual wage adjustments. The Appeals Board granted reconsideration, reversing the 15% increase because Labor Code section 4658(d) applies only to permanent disability awards calculated under a specific chart, not to total permanent disability. The Board affirmed the annual wage adjustment date based on precedent and deferred attorney fees pending recalculation.

Workers Compensation Appeals BoardRogelio RojasAllied Waste Industries IncAmerican Home AssuranceFindings Award and Orderpermanent disabilitypermanent total disabilityLabor Code section 4658(d)(2)state average weekly wageSAWW adjustment
References
3
Case No. ADJ7702084
Regular
Jan 23, 2012

WILLIAM BRAGA vs. CITY OF SEBASTOPOL, REDWOOD EMPIRE MUNICIPAL INSURANCE FUND

This case concerns whether the City of Sebastopol is entitled to a 15% reduction in permanent disability payments to William Braga, a fire captain who sustained hearing loss. The defendant argues this reduction is permissible under Labor Code section 4658(d)(3)(A) because they offered Braga regular work. However, the Workers' Compensation Appeals Board (WCAB) denied reconsideration, finding the statute inapplicable because Braga lost no time from work and continued his regular duties. The WCAB reasoned that Labor Code section 4658(d) is intended to incentivize employers to return injured workers to employment, a purpose not served when the employee never stopped working.

Workers Compensation Appeals BoardCity of SebastopolRedwood Empire Municipal Insurance FundFindings and AwardPetition for ReconsiderationFire CaptainCumulative PeriodHearing LossPermanent DisabilityScheduled Rate
References
4
Case No. ADJ6807374, ADJ6807475
Regular
Apr 25, 2011

CIIRISTINE OSTRANDER vs. COUNTY OF LOS ANGELES/SHERIFF'S DEPARTMENT

This case involves an employer's failure to provide an injured employee with timely notice of modified or alternative work following a determination of permanent and stationary status. While the employee eventually returned to her regular duties, the employer did not formally offer such positions within the 60-day window mandated by Labor Code section 4658(d)(2). Consequently, the employer is not entitled to a 15% decrease in permanent disability payments. However, the Appeals Board found that awarding the employee a 15% increase would elevate form over substance, given the employee's early return to regular work. Therefore, the Board rescinded the original award of a 15% increase and modified the decision to state there is no 15% adjustment under Labor Code section 4658(d).

Workers' Compensation Appeals BoardChristine OstranderCounty of Los Angeles/Sheriff's Departmentindustrial injuryrespiratory systemasthmainternal diseasepermanent disabilitypermanent and stationary (P&S) dateLabor Code section 4658(d)
References
2
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