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

Case No. CA 16-00663
Regular Panel Decision
Feb 10, 2017

INTERNATIONAL UNION (DISTRICT) v. NEW YORK STATE DEPT. OF LABOR

This case involves an appeal concerning the interpretation of Labor Law § 220 (3-e) in New York, specifically regarding the prevailing wage for glazier apprentices on public works projects. Plaintiffs, a consortium of unions, individuals, and businesses, challenged the New York State Department of Labor's (DOL) interpretation that glazier apprentices performing work classified for another trade (like ironworkers) must be paid at the journeyman rate for that other trade. The Supreme Court initially dismissed the plaintiffs' complaint, upholding the DOL's position. However, the Appellate Division reversed this decision, ruling that Labor Law § 220 (3-e) permits glazier apprentices registered in a bona fide program to be paid apprentice rates, irrespective of whether the work performed falls under a different trade classification. The court concluded that the DOL's interpretation was contrary to the plain meaning of the statute and thus not entitled to deference.

Apprenticeship ProgramsLabor LawPublic Works ProjectsGlaziersIronworkersPrevailing WageStatutory InterpretationNew York State Department of LaborDeclaratory JudgmentAppellate Review
References
33
Case No. ADJ4655433 (STK 0183897) ADJ4135432 (STK 0183898)
Regular
Sep 08, 2010

CARMELA GARCIA vs. E & J GALLO WINERY, P.S.I.

This case concerns a request for supplemental attorney's fees following an unsuccessful petition for writ of review by defendant E & J Gallo Winery. The Court of Appeal previously granted the applicant's request for fees under Labor Code § 5801 and remanded the matter. The applicant's attorney requested $3,150.00 for services related to answering the petition, which the defendant did not dispute in amount, only in principle. The Workers' Compensation Appeals Board found the requested amount reasonable and issued a supplemental award of $3,150.00 in attorney's fees.

Workers' Compensation Appeals BoardLabor Code § 5801attorney's feessupplemental awardpetition for writ of reviewremittiturreasonable basisapplicantdefendantE & J Gallo Winery
References
1
Case No. 2021 NY Slip Op 00461
Regular Panel Decision
Jan 28, 2021

Matter of Executive Cleaning Servs. Corp. v. New York State Dept. of Labor

Executive Cleaning Services Corporation and Cef Saiz, the petitioners, challenged a determination by the Commissioner of Labor, alleging they failed to pay prevailing wages for cleaning services provided to the Ossining Public Library. The Department of Labor initiated an investigation following an employee complaint and concluded that the contract was subject to the prevailing wage provisions of Labor Law article 9. Petitioners argued the library was not a 'public agency' as defined by Labor Law § 230 (3), thus exempting their contract from prevailing wage requirements. The Appellate Division, Third Department, ultimately agreed with the petitioners, finding that despite its public function and ties to the school district, the Ossining Public Library does not fit the statutory definition of a public agency under Labor Law § 230 (3). Consequently, the Commissioner's determination was annulled, the petition granted, and the action for declaratory judgment severed and remitted to the Supreme Court.

Prevailing Wage LawLabor Law Article 9Public Agency DefinitionOssining Public LibraryEducation CorporationCPLR Article 78 ProceedingDeclaratory Judgment ActionBuilding Service ContractsSchool District Public LibraryAdministrative Law
References
18
Case No. ADJ11328275
Regular
Dec 10, 2018

DENISE DOYLE vs. TECH MAHINDRA (AMERICAS) INC., ALLMERICA FINANCIAL BENEFIT INSURANCE COMPANY, HANOVER INSURANCE GROUP

The defendant sought reconsideration of an order allowing the applicant to consult a second physician within the employer's Medical Provider Network (MPN). The defendant argued that the MPN physician's release from care was not a dispute over diagnosis or treatment, and Labor Code sections 4061 and 4062, requiring medical-legal evaluations, applied instead. The Appeals Board dismissed the petition, finding it was not taken from a final order as it did not determine substantive rights or liabilities. The Board also noted that even if considered on its merits, the petition would be denied because Labor Code Section 4616.3 and Administrative Director Rule 9785(b)(3) allow an employee to seek a second opinion within the MPN when disputing a release from care.

Workers' Compensation Appeals BoardPetition for ReconsiderationMedical Provider NetworkMPNLabor Code Section 4616.3Second Physician ConsultMedical-Legal EvaluationFinal OrderSubstantive Right or LiabilityThreshold Issue
References
4
Case No. MISSING
Regular Panel Decision

Blyer Ex Rel. National Labor Relations Board v. Local Union No. 3, International Brotherhood of Electrical Workers

The petitioner sought a preliminary injunction against Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO, for alleged recognitional or organizational picketing. This picketing was asserted to be in violation of section 10(1) and section 158(b)(7)(A) of the National Labor Relations Act. The employer, Genmar Electrical Contracting, had recently recognized United Construction Trades & Industrial Employees International Union (UCTIU) as the lawful representative of its employees. The Court found reasonable cause to believe that Local Union No. 3's picketing aimed to force Genmar to recognize their union or compel employees to switch their affiliation, constituting an unfair labor practice. Concluding that injunctive relief was just and proper, the Court granted the preliminary injunction, enjoining Local Union No. 3 from such picketing.

Preliminary InjunctionLabor LawUnfair Labor PracticePicketingNational Labor Relations ActOrganizational PicketingRecognitional PicketingCollective BargainingUnion RepresentationSection 10(l)
References
10
Case No. MISSING
Regular Panel Decision

Garcia v. 225 East 57th Street Owners, Inc.

Plaintiff Carlos Garcia, a laborer, was injured on January 16, 2007, while removing mirrored wall panels for JMPB Enterprises, LLC, at a cooperative apartment building owned by the defendant in Manhattan. He was injured when a panel broke and cut his hand. Garcia sued, alleging common-law negligence and violations of Labor Law §§ 200, 240 (1), and 241 (6). The motion court dismissed most claims but allowed the Labor Law § 241 (6) claim based on 12 NYCRR 23-3.3 (b) (3) and (c) to proceed. The appellate court reversed, dismissing the remaining § 241 (6) claim, holding that the Industrial Code provisions relied upon were inapplicable because the injury resulted from the deliberate performance of work, not from structural instability caused by the progress of demolition work, which the codes are designed to address. The court clarified that the breaking of the mirror was not a hazard contemplated by the cited Industrial Code provisions.

Personal InjuryLabor LawIndustrial CodeDemolition WorkStructural IntegrityHazardSummary JudgmentAppellate ReviewWorkplace SafetyMirror Removal
References
13
Case No. 2022 NY Slip Op 00459 [201 AD3d 1001]
Regular Panel Decision
Jan 26, 2022

Venegas v. Shymer

Oscar Venegas, a construction worker, sustained injuries after falling from a height of 25-30 feet while installing a prefabricated roof truss at a construction site. He initiated a personal injury action against 3 Merrick, LLC (owner) and Shefa Construction, Inc. (contractor), alleging violations of Labor Law §§ 240 (1) and 241 (6). The Supreme Court initially denied Venegas's motion for summary judgment on liability for both claims and granted Salamon's Home Improvements, Inc.'s motion to dismiss the complaint against it. On appeal, the Appellate Division, Second Department, modified the order. It granted Venegas summary judgment on the Labor Law § 240 (1) claim against 3 Merrick, LLC, and Shefa Construction, Inc., but affirmed the denial of summary judgment on the Labor Law § 241 (6) claim, finding the cited industrial code regulations inapplicable as no safety devices were provided. The cross-appeal was dismissed as abandoned.

Construction site injuryLabor Law violationFall from heightSummary judgment motionAppellate reviewNondelegable dutySafety equipmentIndustrial codePersonal injury litigationEmployer liability
References
10
Case No. ADJ4140574 (VNO 0417628) ADJ3588068 (VNO 0472981)
Regular
Jun 03, 2013

KEVIN THOMPSON vs. COUNTY OF LOS ANGELES, TRISTAR RISK MANAGEMENT

The Workers' Compensation Appeals Board awarded applicant Kevin Thompson an additional attorney's fee of $1,500 under Labor Code section 5801. This fee is for services rendered by his attorney in successfully defending against the defendant's petition for writ of review to the Court of Appeal. The Board disallowed the requested clerical fees as section 5801 applies only to attorney services. Additionally, the request for costs under Labor Code section 5811 was denied due to the lack of required itemization and supporting documentation.

Labor Code § 5801Attorney's feePetition for Writ of ReviewAppeals BoardSupplemental awardReasonable attorney's feeAppellate levelPenaltyClerical servicesLabor Code § 5811
References
12
Case No. MON 0331606
Regular
Aug 08, 2007

DEAN HARVEY vs. PES PAYROLL

This case involves a request for additional attorney's fees and costs under Labor Code § 5801 following a successful appeal by the applicant. The Appeals Board awarded applicant's attorney $3,500 in fees and $96.98 in costs, finding the requested hours for drafting the response excessive and disallowing paralegal fees. The Board determined the case was of average complexity and set the hourly rate at $250 for a certified specialist.

Labor Code § 5801Attorney's FeesPetition for Writ of ReviewCourt of AppealAppeals BoardSupplemental AwardReasonable FeesHourly RateCertified SpecialistAppellate Complexity
References
3
Case No. ADJ6861829
Regular
Jun 13, 2012

BART JAMES JOHNSON vs. BEYETTE'S TREE CARE

This case involves a supplemental award of attorney's fees to Bart James Johnson's attorney, pursuant to Labor Code § 5801. The Court of Appeal denied the employer's petition for writ of review, finding no reasonable basis. Consequently, the case was remanded for attorney's fees. The applicant's attorney requested $3,500.00 for ten hours of work at $350 per hour related to the writ of review. The Workers' Compensation Appeals Board deemed this fee reasonable and awarded it against the uninsured employer.

Workers' Compensation Appeals BoardSupplemental Attorney's FeesLabor Code § 5801Petition for Writ of ReviewRemandReasonable Attorney FeesStipulationPetition for FeeAnswer to PetitionLegal Services
References
1
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