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

Case No. ADJ9361055
Regular
Dec 16, 2014

CODY GLEASON vs. MEASUREMENT DRIVEN REHABILITATION, AMTRUST

This case, Cody Gleason v. Measurement Driven Rehabilitation; Amtrust, resulted in the dismissal of the applicant's Petition for Reconsideration. The Workers' Compensation Appeals Board found the petition was not timely-filed. The Board adopted and incorporated the reasoning of the workers' compensation administrative law judge's Report and Recommendation. Therefore, the Petition for Reconsideration was dismissed.

Petition for ReconsiderationTimely-filedWorkers' Compensation Appeals BoardAdministrative Law JudgeReport and RecommendationDismissedADJ9361055Measurement Driven RehabilitationAmtrustSan Diego District Office
References
0
Case No. MISSING
Regular Panel Decision
Dec 21, 1995

In re Jordan Rehabilitation Service, Inc.

Jordan Rehabilitation Service, Inc., providing medical and vocational rehabilitative services, appealed a decision by the Unemployment Insurance Appeal Board. The Board assessed additional unemployment insurance contributions, finding that specialists hired by Jordan were employees, not independent contractors, between 1989 and 1991. The court reviewed whether there was substantial evidence to support the Board's conclusion of an employer-employee relationship. Key factors included Jordan's control over recruitment, screening, compensation, billing, and contractual restrictions on specialists. Ultimately, the court affirmed the Board's decision, determining that Jordan exercised sufficient overall control to establish an employer-employee relationship and thus was liable for the contributions.

Unemployment InsuranceEmployer-Employee RelationshipIndependent ContractorRehabilitation ServicesLabor LawSubstantial EvidenceControl TestJudicial ReviewAdministrative Law JudgeDepartment of Labor
References
8
Case No. MISSING
Regular Panel Decision
May 14, 2014

Forest Rehabilitation Medicine PC v. Allstate Insurance

Plaintiff Forest Rehabilitation Medicine PC sued defendant Allstate to recover $3,490 for no-fault medical benefits provided to assignor Tracy Fertitta. The core issue was the medical necessity of "Calmare pain therapy" (scrambler therapy), a novel treatment. The court conducted a bench trial, hearing expert testimony from both sides. Dr. Ayman Hadhoud, for the defense, argued the treatment was not medically necessary, not cost-effective, and essentially a form of physical therapy. Dr. Jack D’Angelo, for the plaintiff, countered that the therapy, though new, had FDA approval, was used by the military, and reduced the assignor's pain levels. Applying the Frye standard, the court found the evidence regarding Calmare scrambler therapy reliable and ruled it was medically necessary for Ms. Fertitta's pain management. Consequently, judgment was awarded to the plaintiff, Forest Rehabilitation Medicine PC, for $3,490 plus attorney's fees and interest.

No-Fault InsuranceMedical NecessityCalmare Pain TherapyScrambler TherapyNovel TreatmentFrye StandardExpert TestimonyPain ManagementFDA ApprovalCervical Radiculopathy
References
14
Case No. 2018 NY Slip Op 04542 [162 AD3d 878]
Regular Panel Decision
Jun 20, 2018

Lorde v. Margaret Tietz Nursing & Rehabilitation Ctr.

Thomas Lorde, a carpenter, was injured after falling from an inverted bucket while installing sheetrock at premises owned by Margaret Tietz Nursing and Rehabilitation Center. Lorde filed an action for personal injuries, alleging common-law negligence and violations of Labor Law §§ 200, 240 (1), and 241 (6), and moved for summary judgment on the Labor Law § 240 (1) claim. The Supreme Court, Kings County, denied his motion for summary judgment on the issue of liability. Lorde appealed this decision to the Appellate Division, Second Department. The Appellate Division affirmed the Supreme Court's order, concluding that Lorde failed to establish his prima facie entitlement to judgment as a matter of law, as his testimony raised triable issues of fact regarding the availability of safety devices and whether his own negligence was the sole proximate cause of his injury.

Personal InjurySummary JudgmentLabor Law § 240(1)Elevated Work SiteSafety DevicesProximate CauseWorker NegligenceAppellate ReviewConstruction AccidentFalling Accident
References
10
Case No. 2022 NY Slip Op 07367 [211 AD3d 1582]
Regular Panel Decision
Dec 23, 2022

Bregaudit v. Loretto Health & Rehabilitation Ctr.

Plaintiff Edison Bregaudit sought damages after slipping on ice at a facility owned by Loretto Health and Rehabilitation Center, which contracted Pro Scapes, Inc. for snow removal. Pro Scapes initially moved for summary judgment, arguing it owed no duty of care to the plaintiff, a motion initially granted by the Supreme Court. On appeal, the Appellate Division, Fourth Department, reversed parts of the lower court's decision. The Appellate Division found a question of fact existed regarding whether Pro Scapes negligently created or exacerbated the dangerous icy condition by using inadequate deicer, which could lead to refreezing. Consequently, the court denied parts of Pro Scapes' motion for summary judgment and reinstated the amended complaint and cross-claim for common-law indemnification against Pro Scapes.

Snow and IceSlip and FallPremises LiabilitySnow Removal ContractSummary JudgmentDuty of CareTort LiabilityExacerbated ConditionNegligenceRefreezing
References
16
Case No. 2021 NY Slip Op 00118 [190 AD3d 489]
Regular Panel Decision
Jan 12, 2021

Henry v. Split Rock Rehabilitation & Health Care Ctr., LLC

Plaintiff Ian Henry, an HVAC technician, was injured on January 24, 2014, at Split Rock Rehabilitation and Health Care Center, LLC, when a circuit breaker allegedly exploded. He was inspecting a newly installed rooftop air conditioning unit and was escorted to an electrical room by a Split Rock employee. Split Rock moved for summary judgment, arguing Henry's failure to turn off the power caused the incident, but Henry testified the power was already off. The Supreme Court, Bronx County, denied the motion, finding unresolved factual issues regarding the accident's cause and whether the risks were readily observable. The Appellate Division, First Department, affirmed the denial of summary judgment, concluding that material issues of fact remained for trial.

Summary JudgmentHVAC TechnicianWorkplace AccidentCircuit Breaker ExplosionMaterial Issues of FactObservable RisksNegligenceThird-Party DefendantAppellate ReviewPremises Liability
References
7
Case No. FICSUR060012
Regular Panel Decision

In re the Rehabilitation of Frontier Insurance

This opinion addresses the proposed plan of continued rehabilitation for Frontier Insurance Company, submitted by the Superintendent of Financial Services. The core legal question is whether surety claims are entitled to class two priority status under Insurance Law § 7434 (a) (1) (ii), which the Rehabilitator's plan sought to exclude from "Claims under Policies." The court concludes that surety claims are indeed "claims under policies" and thus are entitled to class two priority in liquidation, based on statutory text, legislative intent, and New York appellate decisions. Consequently, the court disapproved the Rehabilitator's plan because it provided less favorable treatment to surety claimants than they would receive in liquidation, contravening federal constitutional law principles. The matter is remitted to the Rehabilitator to propose a revised plan or apply for an order of liquidation.

Insurance LawRehabilitation ProceedingSurety BondsPriority ClassesLiquidationInsurance ContractsStatutory InterpretationFinancial ServicesInsolvencyClaims Prioritization
References
14
Case No. 2021 NY Slip Op 06800
Regular Panel Decision
Dec 07, 2021

Harris v. Pelham Parkway Nursing Care & Rehabilitation Facility LLC

Plaintiff Mariantha Harris appealed an order from Supreme Court, Bronx County, denying her cross motion for summary judgment dismissing an affirmative defense based on the exclusivity provision of the Workers' Compensation Law. The Appellate Division, First Department, reversed the order, granting Harris's cross motion. Harris successfully established prima facie that she was not an employee of Pelham Parkway Nursing Care and Rehabilitation Facility LLC at the time of her accident, but rather was solely employed by nonparty Clear Choice, P.C. The defendant failed to provide sufficient evidence to support its claim that Harris was its special employee, with its reliance solely on the plaintiff performing duties at its nursing home being insufficient. Additionally, the court found the doctrine of judicial estoppel inapplicable because plaintiff had not secured a judgment in her favor in the prior proceeding, and the defendant's prematurity argument was improperly raised for the first time on appeal.

Summary JudgmentExclusive RemedyEmployment StatusSpecial EmployeeSlip and FallJudicial EstoppelAppellate ProcedureCross MotionAffirmative DefenseClear Choice P.C.
References
6
Case No. MISSING
Regular Panel Decision

Valley Rehabilitation and Medical Offices, P.C. v. Cash

Plaintiff, Valley Rehabilitation, sought $10,010.56 from defendant Lynda Cash for physical therapy, claiming breach of contract and an account stated based on an agreement where Cash would be liable if her workers' compensation claim failed. However, Cash received a $12,500 workers' compensation settlement, fulfilling the conditions of the agreement. The court found that Valley Rehabilitation failed to comply with Workers’ Compensation Board rules, including obtaining authorization for services over $500 and properly filing documentation. Consequently, the court ruled that the medical provider must collect fees from the employer/carrier, not the claimant. Furthermore, the defendant's timely objections prevented the establishment of an account stated. Therefore, the plaintiff's claim was barred, and the action was dismissed with prejudice.

Workers' CompensationMedical BillingAccount StatedBreach of ContractStatutory ComplianceMedical ProviderInjured WorkerLump-Sum SettlementAuthorization RequirementsNew York Law
References
4
Case No. MISSING
Regular Panel Decision
Oct 11, 2012

Gullo v. Bellhaven Center for Geriatric & Rehabilitative Care, Inc.

This case concerns an appeal regarding an employee, Lenny Gullo, who sued his employer, Bellhaven Center, for damages stemming from a delayed diagnosis of Hepatitis C. Gullo underwent a routine blood test in 2005 which tested positive for the Hepatitis C antibody, but he was only informed of this condition in 2009. Along with his wife and daughter, Gullo commenced an action alleging damages due to the delayed diagnosis caused by the employer's failure to disclose test results. The Supreme Court initially granted Bellhaven's motion for summary judgment, ruling that Workers' Compensation Law provided the exclusive remedy. However, the appellate court reversed this decision, emphasizing that the Workers’ Compensation Board holds primary jurisdiction over issues of compensation coverage. The matter was remitted back to the Supreme Court, Suffolk County, for a new determination following a resolution by the Workers' Compensation Board regarding the parties' rights.

Primary JurisdictionHepatitis CDelayed DiagnosisPersonal InjurySummary JudgmentAppellate ReviewRemittalEmployer LiabilityMedical Test ResultsSuffolk County Supreme Court
References
8
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