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

Case No. 6070 7321 (referencing Employer: McLane Northeast)
Regular Panel Decision
Mar 14, 2011

Angelo v. Chemical

This appeal concerns a Workers’ Compensation Board decision regarding death benefits for the widow of John Angelo, who died from asbestos-related pleural disease. The decedent's occupational disease claim for pleural asbestosis had a disablement date of May 27, 1994. The Workers’ Compensation Law Judge (WCLJ) established the case for causally-related death, set an average weekly wage of $838.46, and awarded maximum benefits of $500 per week, shifting liability to the Special Fund for Reopened Cases. The Special Fund appealed, arguing the lower statutory maximum rate from the 1994 disablement date should apply, not the rate effective at the time of death. The Board upheld the WCLJ's decision, citing Workers’ Compensation Law § 16 (5) (1), which states the increased maximum death benefit rate applies to deaths occurring on or after July 1, 2007. The court affirmed the Board's decision, finding the statutory language unambiguous and rejecting the Special Fund's arguments.

Death BenefitsSurviving SpouseOccupational DiseaseAsbestosisPleural DiseaseDisablement DateMaximum Benefit RateStatutory InterpretationSpecial Fund for Reopened CasesWorkers' Compensation Board Appeal
References
2
Case No. MISSING
Regular Panel Decision

Vandewalker v. Snowball Tree Farm, Inc.

Claimant sustained a left foot injury in November 1982, leading to amputation and subsequent surgeries. The Workers' Compensation Law Judge (WCU) initially found a 70% schedule loss of use, later increasing it to 100% after further medical examination in August 1987. The WCU awarded compensation at $105 per week, with a temporary total disability rate of $183.33 for a specific period. The employer appealed, and the Workers' Compensation Board modified the award, asserting the permanent partial disability rate of $105 per week applied for the entire schedule loss. Claimant appealed this modification, arguing for the higher temporary total disability rate during the protracted healing period. The court affirmed the Board's decision, holding that the injury was classified as a permanent partial disability dating from the accident, and therefore the maximum permanent partial disability rate of $105 per week was appropriate for the entire award period.

Schedule Loss of UsePermanent Partial DisabilityTemporary Total DisabilityAverage Weekly WageAmputationBenefit ModificationAppellate ReviewMedical Examiner ReportJudiciary LawFoot Injury
References
9
Case No. MISSING
Regular Panel Decision
May 04, 1979

Claim of Ellert v. Ellert Brothers & Sons, Inc.

The claimant suffered a serious right knee injury on November 2, 1972, while working, which resulted in a 75% permanent partial disability. This disability was apportioned, with 40% attributed to the accident and 60% to a pre-existing condition of advanced arthritis. The claimant's average weekly wage was $250. Under Workers’ Compensation Law § 15 (subd 6, par [c]), applicable to the accident date, the maximum weekly compensation for permanent partial disability was $80. The Workers’ Compensation Board awarded the claimant $32 per week, which represented 40% of the $80 maximum, aligning with the causation attributed to the accident. The court affirmed the board's decision, finding the apportionment of liability and the application of the maximum partial disability rate to be proper and rationally based, consistent with established legal precedents.

Permanent Partial DisabilityWorkers' Compensation LawApportionment of LiabilityPre-existing ConditionEarning Capacity LossMaximum Weekly CompensationAppellate ReviewCausation in InjuryJudicial PrecedentWorkers’ Compensation Board Decision
References
3
Case No. MISSING
Regular Panel Decision

Claim of Salvet v. Union Carbide Linde Division

Claimant sustained two compensable injuries, leading to a permanent partial disability classification in 1983 with a nonschedule award of $95 per week. Subsequently, in 1984, the claimant was diagnosed with a 24.2% occupational binaural hearing loss, resulting in a schedule award of $105 per week for 36.3 weeks. The Workers' Compensation Board, following an application by the carrier, reduced this schedule award to $10 per week. This reduction was based on Workers' Compensation Law § 15 (6) (a), which sets a maximum of $105 per week for compensation for permanent or temporary partial disability, indicating that the aggregate of both awards should not exceed this statutory limit. The appellate court affirmed the Board's decision, ruling that the statutory maximum applies to the total of all permanent partial disability awards, irrespective of whether they are schedule or nonschedule awards.

Workers' Compensation LawPermanent Partial DisabilityOccupational Hearing LossSchedule AwardNonschedule AwardStatutory MaximumAggregate AwardsWorkers' Compensation Board AppealStatutory InterpretationConcurrent Awards
References
6
Case No. MISSING
Regular Panel Decision

Claim of Campolo v. International Ladies Garment Workers Union

The claimant appealed decisions from the Workers' Compensation Board concerning reduced earnings benefits for a right hip injury sustained in 1973, which aggravated a prior 1962 injury. The Board had affirmed a referee's award of $70 reduced earnings, calculating the 50% apportionment factor for the pre-existing injury after determining the maximum average weekly wage. The appellants argued that the method of calculation was erroneous. The court agreed, finding that the Board incorrectly applied the 50% apportionment to the claimant's average weekly wage of $140 instead of the statutory maximum weekly rate of $80. Consequently, the case was reversed and remitted to the Board for recalculation in accordance with Workers’ Compensation Law § 15.

Calculation errorApportionment factorReduced earningsPermanent partial disabilityPre-existing injuryStatutory interpretationWorkers’ Compensation LawRemittalAppealHip injury
References
1
Case No. MISSING
Regular Panel Decision
Jan 10, 1980

Claim of Harris v. Inc. Village of Westbury

This case involves an appeal from a Workers’ Compensation Board decision filed on January 10, 1980. The Board found the claimant permanently totally disabled due to a 1969 industrial accident and other unrelated accidents, with one-third of the disability causally related to the 1969 incident. An award of $42.79 as the weekly compensation rate was made. The appellants contended this rate was incorrect, arguing that three times this amount would exceed the statutory maximum of $70 for total disability related to the 1969 accident. The Board, however, maintained its computation was correct, based on a continuing causally related disability of one-third and not subject to a $70 maximum computation. The court affirmed the Board's decision, stating that the appellants’ argument was erroneous as there was no finding that the 1969 accident alone caused total disability, and the award did not exceed the $70 maximum.

Workers' CompensationDisabilityPermanent Total DisabilityIndustrial AccidentCompensation RateStatutory MaximumCausal RelationshipBoard DecisionAppealRate Calculation
References
4
Case No. 2025 NY Slip Op 02959
Regular Panel Decision
May 14, 2025

Weekes v. Tishman Tech. Corp.

Samuel Weekes, an employee, was injured while dismantling a scaffold at a construction site managed by Tishman Technologies Corporation. He sued, alleging violations of Labor Law § 240(1) and § 241(6). The Supreme Court initially denied Weekes's summary judgment motion and granted the defendants' cross-motion to dismiss, also denying Weekes's motion for leave to renew. The Appellate Division modified the Supreme Court's order, ruling that Tishman could be considered a statutory agent of the owner due to its control over safety. The court also found that Weekes's activity was covered under Labor Law § 240(1) and that triable issues of fact existed regarding the elevation-related hazard and proximate cause, thereby denying the defendants' cross-motion for summary judgment. The denial of Weekes's motion for leave to renew was affirmed, and part of the appeal from the November 4, 2020 order was dismissed as academic.

Construction AccidentLabor Law Section 240(1)Labor Law Section 241(6)Industrial Code ViolationScaffold SafetyElevation HazardSummary JudgmentStatutory AgentConstruction Manager LiabilityTriable Issues of Fact
References
36
Case No. MISSING
Regular Panel Decision

Kennedy v. Weeks Marine, Inc.

Martin R. Kennedy was injured while working on a barge chartered by his employer, American Bridge Company, from Week’s Marine, Inc. Kennedy fell from a wooden plank serving as the barge's gangway, which was supplied by American Bridge. He brought suit pursuant to 33 U.S.C. § 905(b), but Magistrate Judge David F. Jordan granted summary judgment for Week’s Marine, concluding they had no duty to provide a safe gangway under a bare boat charter. Kennedy appealed this judgment, arguing Week's Marine had knowledge of workers on the barge. The District Court affirmed the lower court's decision, ruling that Week's Marine, having relinquished control of the vessel in a bare boat charter, was not responsible for conditions arising after the charter or for providing a gangway, as the charterer, American Bridge, became the owner pro hac vice and bore that duty.

Bare Boat CharterMaritime LawSummary JudgmentLongshore and Harbor Workers' Compensation ActVessel Owner LiabilityCharterer LiabilityGangway SafetyDuty of CareOwner Pro Hac ViceAppellate Review
References
14
Case No. OAK 0280463
Regular
Dec 12, 2007

MICHAEL ELDERKIN vs. RCC CONSTRUCTORS AND CIGA BY BROADSPIRE SERVICES FOR LEGION INSURANCE COMPANY, IN LIQUIDATION

This case concerns a worker's compensation applicant seeking reconsideration of an award that set his average weekly wage below the maximum rate. The Appeals Board granted reconsideration, finding that the defendant failed to demonstrate good cause to withdraw from a prior stipulation between the parties establishing the applicant's earnings at the maximum rate. The Board emphasized that stipulations should be upheld unless there is clear evidence of mistake or inadvertence, not simply an unfavorable outcome for a party.

Workers' Compensation Appeals BoardMichael ElderkinRCC ConstructorsCIGABroadspire ServicesLegion Insurance CompanyIron FabricatorIndustrial InjuryBack InjuryHip Injury
References
2
Case No. ADJ9196537
Regular
Nov 10, 2015

PHYLLIS HAREN vs. CITY OF SACRAMENTO, self-insured and self-administered

This case involves a reserve police officer injured on duty whose average weekly earnings were only $84.38. The applicant successfully argued that under Labor Code sections 3362.5 and 4458.2, her temporary and permanent disability indemnity should be calculated at the maximum rate, not based on her actual earnings. The Appeals Board amended the WCJ's decision to award these benefits at the maximum statutory rates. The applicant's attorney was awarded a fee of $4500.00 for securing this increased compensation.

WORKERS' COMPENSATION APPEALS BOARDReserve Police OfficerIndustrial InjuryRight ShoulderTemporary Disability IndemnityPermanent Disability IndemnityMaximum RateLabor Code Sections3362.54458.2
References
0
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