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

Case No. 2016-334 S C
Regular Panel Decision
Apr 27, 2017

2 & 9 Acupuncture, P.C. v. 21st Century Advantage Ins. Co.

This case concerns an appeal by 2 & 9 Acupuncture, P.C. from an amended order that granted summary judgment to 21st Century Advantage Insurance Company, dismissing a complaint to recover assigned first-party no-fault benefits. The defendant argued it had paid the plaintiff in accordance with the workers' compensation fee schedule. The Appellate Term, Second Department, reversed the lower court's decision, finding that the defendant failed to prima facie demonstrate proper denial of payment for services billed under CPT codes 97026 and 97016. Consequently, the defendant's motion for summary judgment regarding these specific CPT codes was denied.

No-Fault BenefitsSummary JudgmentCPT CodesWorkers' CompensationAppellate ReviewInsurance LawMedical BillingAcupunctureSuffolk CountyPayment Dispute
References
3
Case No. MISSING
Regular Panel Decision

In Re Pursuant to Section 304 of the Bankruptcy Code of Banco Nacional De Obras Y Servicios Publicos, S.N.C.

The International Association of Machinists and Aerospace Workers (IAM) sought relief from a preliminary injunction to pursue an action against Aeronaves de Mexico, S.A. de C.V. (Aeronaves) for declaratory judgment concerning a collective bargaining agreement. Aeronaves, represented by its Mexican bankruptcy trustee Banobras, objected, arguing the claims should be handled in Mexican bankruptcy court. Judge Tina L. Brozman analyzed the request in the context of section 304 of the Bankruptcy Code, emphasizing the specialized nature of American labor law, particularly the Railway Labor Act (RLA). Balancing international comity with the protection of American creditors, the court found that the issues regarding the existence and terms of the collective bargaining agreement required the expertise of an American district court. Therefore, the motion for relief from the stay was granted to permit the IAM action to proceed in the Southern District of New York.

Bankruptcy LawInternational ComitySection 304 StayRailway Labor Act (RLA)Collective Bargaining AgreementForeign BankruptcyAncillary ProceedingsDeclaratory ReliefLabor DisputeCreditor Claims
References
32
Case No. ADJ6699348
Regular
Mar 17, 2016

KANON MONKIEWICZ vs. RM STORE FIXTURES, STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board (WCAB) issued a Notice of Intention to find that Labor Code section 4903.8(a) does not preclude awards to lien claimants Rx Funding Solutions, LLC and PharmaFinance, LLC. This is because the 2014 amendments to section 4903.8(a)(2) specify that it does not apply to assignments completed prior to January 1, 2013. Both of the lien claimants' assignments were made before this date, thus exempting them from the preclusion. The WCAB is amending its previous order and returning the case to the trial level for further proceedings on the merits of the liens.

Labor Code 4903.8Lien claimantsAssignment of receivablesCessation of businessPharmacy lienMedical lienSB 863AB 2732Prospective vs. retrospective applicationWCAB rules
References
10
Case No. ADJ8469531, ADJ9267403
Regular
May 02, 2019

KAREN DOUGLAS vs. STATE OF CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION

The Workers' Compensation Appeals Board (WCAB) granted reconsideration of a prior decision that barred the applicant's psychiatric claim under Labor Code section 4660.1(c)(1). The WCAB rescinded the original Findings and Award for both consolidated cases. The matters are returned to the trial level for further proceedings and a new decision, guided by a subsequent WCAB en banc opinion addressing section 4660.1(c). The WCAB did not address other issues raised in the applicant's petition.

Workers' Compensation Appeals BoardReconsiderationFindings and AwardPsychiatric claimLabor Code section 4660.1(c)(1)Permanent total disabilityInjury to body partsReport and RecommendationPetition for ReconsiderationSupplemental pleading
References
1
Case No. 2021 NY Slip Op 00133 [190 AD3d 505]
Regular Panel Decision
Jan 12, 2021

Santana v. MMF 1212 Assoc L.L.C.

Plaintiff, Juan C. Santana, was injured during demolition work when a ceiling fell and struck him. He brought claims under Labor Law §§ 241 (6) and 200, alleging violations of Industrial Code (12 NYCRR) §§ 23-1.8 (c) and 23-3.3 (c). The Appellate Division affirmed the denial of Richard Mishkin Contracting Inc.'s motion for summary judgment on the Labor Law § 241 (6) claim, finding issues of fact regarding the provision of safety hats and ongoing inspections. The court also affirmed the dismissal of the Labor Law § 200 claim against MMF 1212 Assoc L.L.C. and Finkelstein Timberger East Real Estate LLC, as plaintiff did not oppose and they lacked control over the work. Finally, Mishkin's cross-claims for common-law contribution and indemnification were not dismissed due to conflicting expert opinions on the gravity of plaintiff's brain injury under Workers' Compensation Law § 11.

Demolition AccidentFalling ObjectsConstruction SafetyLabor LawIndustrial CodeSummary JudgmentContribution ClaimIndemnification ClaimWorkers' CompensationAppellate Review
References
4
Case No. 06-cv-05285
Regular Panel Decision
Oct 29, 2014

Muszkatel v. 90 Church Street Ltd. Partnership

Jerzy Muszkatel, an asbestos abatement worker, sued multiple defendants (owners, environmental consultants, contractors, subcontractors) for common law negligence and violations of New York Labor Law sections 200 and 241(6), alleging injuries from working in buildings near the World Trade Center post-9/11 due to inadequate safety equipment and procedures for "alkaline-based" dust. The District Court, presided by Judge Alvin K. Hellerstein, denied in part and granted in part the defendants' motions for summary judgment. The court found triable issues of fact regarding supervisory control and premises liability under Labor Law 200 for most defendants across multiple sites (2 World Financial Center, 90 Church Street, 140 West Street). It also sustained Section 241(6) claims for these sites concerning specific Industrial Code violations (23-1.5(c)(3), 23-1.7(h), 1.8(c)(4), 23-1.8(b)(l)), but dismissed claims for work at 101 Barclay Street and 7 Dey Street due to lack of "construction, excavation or demolition" activity, and dismissed all claims against Indoor Environmental Technologies, Inc.

asbestos abatementWorld Trade Center9/11 clean-upsummary judgmentNew York Labor Lawnegligenceindustrial code violationsoccupational hazardspersonal protective equipmentsite safety
References
29
Case No. ADJ3328008 (VNO 0517608)
Regular
May 20, 2011

ELIODORO LOPEZ vs. VIRGIL CONVALESCENT HOSPITAL, HEALTHCARE SERVICES GROUP, ZURICH NORTH AMERICA

The Workers' Compensation Appeals Board denied the defendant's petition for reconsideration. The defendant argued they were denied due process when the Workers' Compensation Judge (WCJ) amended a prior decision to correct a Labor Code section reference concerning temporary disability indemnity. The Board found that the original reference to Labor Code § 4656(c)(2) was a clerical error, as the WCJ clearly intended to apply Labor Code § 4656(c)(1) based on the date of injury. The Board affirmed the WCJ's authority to correct such clerical errors.

Workers' Compensation Appeals BoardPetition for ReconsiderationTemporary Disability Indemnity104 week capLabor Code section 4656(c)(1)Labor Code section 4656(c)(2)Industrial InjuryNeck InjuryShoulder InjuryCardiovascular System Injury
References
4
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. ADJ9914916
Regular
Feb 22, 2017

RUSSELL MADSON vs. MICHAEL J. CAVALETTO RANCHES, ZENITH INSURANCE COMPANY

This case concerns an applicant who sustained a psychological injury after a severe truck rollover accident. The Workers' Compensation Appeals Board (WCAB) overturned a prior ruling that denied permanent disability for the psychological injury. The WCAB found that Labor Code section 4660.1(c), which limits psychiatric disability awards arising from physical injuries, did not apply because the psychiatric injury was directly caused by the traumatic events of employment. Furthermore, the Board determined the accident itself constituted a "violent act," qualifying for an exception to section 4660.1(c) and entitling the applicant to compensation for his psychiatric impairment, ultimately awarding 60% permanent disability.

AOE/COELabor Code section 4660.1(c)violent actreconsiderationpsychiatric permanent disabilitymotor vehicle accidentcatastrophic injuryPTSDGAF scoreQME
References
6
Case No. ADJ9474687
Regular
Jun 14, 2019

GUSTAVO NIEVES UGALDE vs. ROCKWELL DRYWALL, INC., STARR INDEMNITY, adjusted by YORK RISK MANAGEMENT GROUP

The Workers' Compensation Appeals Board (WCAB) rescinded the prior award and remanded the case for further proceedings, finding the applicant's psychiatric injury was a consequence of his physical injury, not directly from a violent act. The Board determined the applicant's fall from stilts, while accepted as industrial, did not meet the legal definition of a "violent act" required for an increased psychiatric impairment rating under Labor Code § 4660.1(c)(2)(A). Therefore, the case must be returned to allow the WCJ to first determine if the injury qualifies as "catastrophic" under § 4660.1(c)(2)(B) for potential increased psychiatric rating. The WCAB acknowledged the applicant's credible testimony regarding the use of stilts and the psychiatric QME's opinion on causation but found the issue of a "violent act" was not sufficiently established.

AOE/COEViolent ActCompensable ConsequencePsychiatric InjuryPermanent DisabilityReconsiderationFindings and AwardMedical EvaluatorVocational ExpertLabor Code Section 4660.1
References
11
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