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

Case No. ADJ630145 (OXN 0147327)
Regular
Jan 15, 2015

GREGORY NILSEN vs. VISTA FORD, PACIFIC COMPENSATION INSURANCE COMPANY

This case concerns an applicant's claim for Lidoderm patches as medical treatment. The employer sought reconsideration of an administrative law judge's award, arguing that a prior Independent Medical Review (IMR) decision should have prevented the award and that the matter should be remanded. The Appeals Board, applying its subsequent en banc decision in *Dubon II*, affirmed the original award. However, the Board amended the award to defer issues related to the applicant's appeal of the IMR decision and the award of Lidoderm patches.

WCABPetition for ReconsiderationFindings and AwardIndependent Medical ReviewIMRDubon v. World RestorationLidoderm patchestreating physicianLabor Code section 4610.6(i)Administrative Director
References
2
Case No. MISSING
Regular Panel Decision

Gannon v. All Car Movers, Ltd.

The plaintiff suffered personal injuries after slipping on an ice patch on the steps of a building. The building was owned by Abbey Island Park, Inc., leased to Apex Transportation Corp., and subleased to All Car Movers, Ltd. Abbey Island Park, Inc. appealed an interlocutory judgment finding it liable, arguing insufficient evidence of its control over the premises or notice of the ice. The appellate court affirmed the judgment, concluding that the jury could rationally find the lessor retained control due to a lack of documentary evidence transferring maintenance duties and its own continued grass mowing. Furthermore, the court found the jury could reasonably infer the lessor had notice of the ice patch, which likely formed from a snowstorm six days prior to the accident, despite minor precipitation the day before.

Premises LiabilitySlip and FallIce AccumulationLessor ControlConstructive NoticeJury Verdict SufficiencyAppellate AffirmationPersonal InjuryReal Property LawNassau County
References
9
Case No. ADJ3274679
Regular
Jun 26, 2012

PATCHES CONWAY vs. ARCHITECTURAL ART MANUFACTURER, CHARTIS

The Workers' Compensation Appeals Board dismissed the defendant's Petition for Reconsideration because the defendant voluntarily withdrew it. The defendant had initially sought to set aside an Order Approving Compromise and Release, alleging an inadvertent clerical error by the applicant. However, the issue was resolved when the applicant corrected the error and the Appeals Board incorporated the amendments. Therefore, no further action was required on the reconsideration petition.

Workers' Compensation Appeals BoardPetition for ReconsiderationCompromise and ReleaseOrder Approving Compromise and ReleaseSet Aside OrderInadvertent ErrorClerical ErrorIncorporate by ReferenceDismissed PetitionStatus Conference
References
0
Case No. ADJ6757683
Regular
Oct 26, 2009

REGINA RUIZ vs. MARK MURRAY, STATE FARM INSURANCE

The WCJ's decisions of June 30, 2009 and July 29, 2009 are RESCINDED, and this matter is RETURNED to the trial level for further proceedings and new decision by the WCJ, consistent with this opinion. The dispute over the medications Soma and Lidoderm must be referred to a panel QME.

Petition for RemovalPetition for ReconsiderationOrder Vacating Finding of FactOrder to Develop Medical RecordUtilization Review (UR)Expedited HearingPanel Qualified Medical Evaluation (PQME)Treating PhysicianLabor Code Section 4610State Comp. Ins. Fund v. Workers' Comp. Appeals Bd. (Sandhagen)
References
2
Case No. ADJ2120886
Regular
Oct 12, 2015

KIMBERLY VAN BUREN vs. PRIMITIVE LOGIC, INC, REPUBLIC INDEMNITY

This case concerns a worker's claim for prescribed medications. The employer argued their utilization review denial was timely, precluding the WCJ's jurisdiction over medical necessity. The Appeals Board affirmed the WCJ's finding that the utilization review denial was untimely due to insufficient evidence of proper and timely communication to the physician. Therefore, the WCJ correctly determined the requested Lidoderm, Capsaicin, and Ketamine creams were reasonable and necessary.

Utilization ReviewTimelinessCommunicationMedical NecessityLabor Code section 4610Administrative Director Rule 9792.9.1Dubon v. World RestorationBodam v. San Bernardino CountyPrimary Treating PhysicianDr. Brendan Morley
References
2
Case No. MISSING
Regular Panel Decision
Dec 30, 1993

Zetlin v. City of New York

The Supreme Court, New York County, denied the defendant-appellant's motion for summary judgment to dismiss the complaint. This decision was unanimously affirmed on appeal. The case involves a plaintiff who allegedly fell on a municipal sidewalk that had been previously repaired by the defendant-appellant's employees. A question of fact remains regarding the negligence of the defendant-appellant's employees in properly patching the sidewalk, as a building superintendent testified to superficial repairs causing rutting, creating an issue of fact.

Sidewalk DefectNegligenceSummary JudgmentQuestion of FactMunicipal SidewalkBuilding SuperintendentInadequate RepairPersonal InjuryAppellate DecisionNew York Law
References
1
Case No. ADJ2068970 (STK 0167616)
Regular
Aug 20, 2015

Norman McAtee vs. Briggs & Pearson Construction, State Compensation Insurance Fund

The Workers' Compensation Appeals Board granted the applicant's petition for reconsideration, finding that the Administrative Director's prior Independent Medical Review (IMR) determination was based on plainly erroneous findings of fact. The Board concluded that the IMR wrongly stated there was no documentation of improved function or reduced pain with the applicant's Duragesic patches, citing medical reports and applicant testimony to the contrary. Therefore, the IMR decision was rescinded, the applicant's appeal was granted, and the treatment dispute was remanded for a new IMR.

WCABPetition for ReconsiderationIndependent Medical ReviewLabor Code Section 4610.6(h)Plainly Erroneous Findings of FactAdministrative DirectorDuragesicOpioid AnalgesicsPermanent DisabilityMedical Treatment
References
0
Case No. ADJ1424522 (SDO 0299397)
Regular
Mar 29, 2018

PETER WINOKUR vs. MONTEREY FINANCIAL SERVICES, FARMERS INSURANCE GROUP

The Workers' Compensation Appeals Board (WCAB) affirmed a judge's decision denying the applicant's claim for acupuncture and lidocaine patches. The applicant argued that acupuncture was not subject to utilization review (UR) based on *Patterson v. The Oaks Farm*, but the Board found *Patterson* inapplicable as there was no evidence of ongoing authorization for acupuncture. All Independent Medical Review (IMR) determinations upholding UR denials were affirmed, as the WCAB's review of IMR decisions is limited to specific grounds. The applicant failed to present clear and convincing evidence of plainly erroneous factual findings by IMR.

Workers Compensation Appeals BoardPetition for ReconsiderationAdministrative Law JudgeFindings and OrderMedical TreatmentAcupunctureLidocaine PatchesUtilization ReviewIndependent Medical Review (IMR)Patterson v. The Oaks Farm
References
9
Case No. MISSING
Regular Panel Decision

Tuthill v. United States

Plaintiff Beverly Tuthill brought an action against the United States of America under the Federal Tort Claims Act after suffering injuries from a slip and fall on ice at the West Point Visitor's Center parking lot. The defendant moved for summary judgment, arguing they had no duty to protect the plaintiff from an open and obvious condition and lacked notice of the icy patch. The court denied the defendant's motion, citing genuine issues of material fact regarding whether the ice was indeed open and obvious and whether the defendant had constructive notice due to a potentially recurring ice problem in the area and the reasonableness of their inspection procedures. The case is to proceed to trial.

Federal Tort Claims ActSlip and FallSummary Judgment MotionNegligenceNew York LawOpen and Obvious HazardConstructive NoticeRecurring ProblemPremises LiabilityDuty of Care
References
17
Case No. 2019 NY Slip Op 08791 [178 AD3d 473]
Regular Panel Decision
Dec 10, 2019

Garcia v. SMJ 210 W. 18 LLC

Plaintiff Juan Garcia was injured when struck by a falling piece of DensGlass while working on a temporary exterior platform on the 21st floor of a building under construction. He was dismantling a bridge linked to an exterior hoist elevator when the material, matching a missing piece from the floor above, struck him. The court reversed the lower court's decision, granting plaintiff's motion for partial summary judgment on his Labor Law § 240 (1) claim, finding that the exterior facade was incomplete and workers were performing patch work above. Additionally, the court denied the defendants-respondents' cross motions for summary judgment on the Labor Law § 241 (6) claim, citing a triable issue of fact regarding the necessity of overhead protection in an area exposed to falling objects.

Construction AccidentFalling ObjectLabor Law 240(1)Labor Law 241(6)Summary JudgmentAppellate ReviewPersonal InjuryWorker SafetyOverhead ProtectionBuilding Under Construction
References
2
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