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

Case No. MISSING
Regular Panel Decision
Sep 15, 1997

Mushatt v. Cayuga Medical Center

Plaintiff appealed a judgment favoring defendants Cayuga Medical Center and the estate of her obstetrician, Frank Flacco, in a medical malpractice case. Plaintiff alleged that negligent care during her son Quandale's birth on August 15, 1990, led to his severe spastic cerebral palsy, mental retardation, and seizure disorder, attributing it to oxygen deprivation caused by a delayed Cesarean section. Defendants argued the oxygen deprivation occurred prior to delivery due to an acute event and chronic condition, and their care met standards. The jury sided with defendants. On appeal, plaintiff challenged the verdict's weight, the application of CPLR 4519 (Dead Man's Statute), the admission of testimony regarding her drug and alcohol use, and a missing witness charge. The Supreme Court Appellate Division affirmed the judgment, finding no errors warranting reversal.

Medical MalpracticeBirth InjuryCerebral PalsyOxygen DeprivationCesarean SectionExpert WitnessDead Man's StatuteCPLR 4519Appellate ReviewNegligence
References
4
Case No. ADJ9145724
Regular
Jun 01, 2015

ARZAGA, JOSE vs. CROWN AUTOMOTIVE, INC., AMTRUST NORTH AMERICA

This case involves an applicant seeking to select a pain management specialist outside his employer's Medical Provider Network (MPN). The applicant argued the MPN failed to provide a qualifying specialist within the required 15-mile/30-minute access standard for a primary treating physician. The Board denied the employer's petition for reconsideration, affirming the applicant's right to choose an out-of-network physician and reimbursement for investigative costs. The majority reasoned that the MPN must meet the closer access standard for a primary treating physician, even if that physician is a specialist. A dissenting opinion argued that a specialist, when chosen as a primary treating physician, should fall under the 30-mile/60-minute access standard for specialists.

Medical Provider NetworkMPNprimary treating physicianpain management specialistaccess standardAdministrative Director's Rule 9767.5investigative costsLabor Code section 5703Lescallett v. Wal-MartMartinez v. New French Bakery
References
2
Case No. ADJ9798663
Regular
Sep 02, 2015

ALEJANDRO SAUCEDO SAHAGUN vs. TXC LOUTER'S DAIRY, ZENITH INSURANCE COMPANY

The Workers' Compensation Appeals Board granted the applicant's petition for reconsideration, rescinding the previous award. The applicant sought to change treating physicians outside the defendant's Medical Provider Network (MPN), arguing the MPN failed to meet access standards for primary treating physicians within 15 miles or 30 minutes of his home or work. The Board found the trial judge applied an incorrect, less stringent access standard, and remanded the case for application of the proper standard. The applicant's injury and initial treatment within the MPN were admitted.

Workers' Compensation Appeals BoardMedical Provider NetworkMPN access standardsAdministrative Director's Rule 9767.5rural areasprimary treating physicianorthopedic physiciansoccupational health servicesLab. Code § 4600Lab. Code § 4616
References
5
Case No. ADJ9884969
Regular
Aug 07, 2015

FERNANDO RUIZ-LUCERO vs. GCA SERVICES GROUP, INC.; ACE AMERICAN INSURANCE COMPANY, administered by ESIS FREMONT

The Workers' Compensation Appeals Board denied the defendant's petition for reconsideration, upholding the finding that the applicant could treat outside the defendant's Medical Provider Network (MPN). The MPN failed to meet access standards by not having three primary treating chiropractors within a 15-mile or 30-minute radius of the applicant's residence. This failure constitutes good cause for the applicant to seek treatment outside the MPN, as required by regulations ensuring timely access to appropriate medical care. The Board agreed with the WCJ's reasoning that the defendant's inadequate MPN access justified the applicant's out-of-network treatment.

MPNAccess StandardsPrimary Treating PhysicianMedical Provider NetworkChiropractorAdministrative Director RuleWCJReconsiderationLabor CodeSpecialty
References
4
Case No. ADJ8759396
Regular
Feb 27, 2015

Jose Diaz vs. Timber Works Construction, Berkshire Hathaway

This Workers' Compensation Appeals Board case involves applicant Jose Diaz seeking reconsideration of a prior order regarding his employer's Medical Provider Network (MPN). The primary issue is whether the MPN's physician accessibility standards, which are tied to the "workplace" or residence, are met. The Board granted reconsideration, rescinded the previous order, and remanded the case, finding the MPN may be defective if it doesn't comply with physician access standards relative to the applicant's residence, given the employer's failure to meet the "workplace" standard. The Board also noted that the applicant's inability to travel, while a factor, was not the deciding point in this decision to remand.

Workers' Compensation Appeals BoardMedical Provider NetworkMPNWorkplaceResidencePhysician Access StandardsTitle 8 Section 9767.5Pain ManagementPhysical MedicineCannot Travel Exception
References
1
Case No. ADJ9052223
Regular
Aug 05, 2016

Joel Rodriguez Luna vs. The Home Depot, Helmsman Management

Here's a summary of the case for a lawyer in a maximum of four sentences: The Workers' Compensation Appeals Board denied Joel Rodriguez Luna's Petition for Removal, affirming the WCJ's finding that Home Depot's Medical Provider Network (MPN) complied with access standards. The WCJ determined that for a specialist, like an orthopedist, the MPN only needed to meet the 30-mile/60-minute access standard, not the stricter 15-mile/30-minute standard for a general primary treating physician. The Board agreed, concluding that since there was at least one orthopedic surgeon within the 30-mile radius, the MPN satisfied its obligations, despite the applicant's preference for a specialist within a closer distance. The dissenting opinion argued the MPN failed by not having at least three specialists readily available to serve as primary treating physicians for the applicant's specific orthopedic injuries.

Workers' Compensation Appeals BoardPetition for RemovalMedical Provider Network (MPN)Access StandardsPrimary Treating PhysicianSpecialistGeographic AreaAdministrative Director's RuleLabor CodeIndustrial Injury
References
3
Case No. MISSING
Regular Panel Decision

Polanco v. Brookdale Hospital Medical Center

Plaintiffs Pearl Polanco, Carol McCarthy, and Wilma Steel-Lopez, former employees of The Brookdale Hospital Medical Center, brought claims under the New York Labor Law (NYLL) and the Fair Labor Standards Act (FLSA), alleging they were not paid for work performed during lunch breaks and after shifts. The defendant moved to dismiss, arguing that the state claims were preempted and federal claims precluded by the Labor Management Relations Act (LMRA). The court, presided over by Senior District Judge Jack B. Weinstein, denied the defendant's motion, concluding that the plaintiffs' NYLL and FLSA claims assert independent statutory rights that are neither preempted nor precluded by the LMRA.

Wage DisputesOvertime CompensationFair Labor Standards ActNew York Labor LawLabor Management Relations ActPreemption DoctrineClaim PreclusionMotion to DismissEmployee RightsStatutory Rights
References
23
Case No. MISSING
Regular Panel Decision

Queens Blvd. Medical, P.C. v. Travelers Indemnity Co.

The plaintiff, Queens Blvd. Medical, P.C., sought $950 in first-party no-fault benefits for biofeedback medical services provided to its assignor for lower back and chronic pain syndrome. The central issue at trial was the medical necessity of these services under Insurance Law § 5102 (a) (1). The plaintiff established a prima facie case with expert testimony from a board-certified neurologist affirming the medical appropriateness of biofeedback. The defendant insurance company failed to present admissible evidence to disprove medical necessity, as its expert was deemed incompetent to testify on biofeedback for back pain. Consequently, the court granted the plaintiff's motion for a directed verdict, awarding judgment for $950 along with statutory costs, interest, and attorney's fees.

No-fault benefitsMedical necessityBiofeedback treatmentExpert testimonyDirected verdictInsurance lawChronic pain syndromeBack injuryCPT codesBurden of proof
References
9
Case No. MISSING
Regular Panel Decision

Rohlehr v. Brookdale University Hospital & Medical Center

Stanley Rohlehr sued Brookdale University Hospital and Medical Center alleging four claims: termination in violation of New York Labor Law § 740 and the Fair Labor Standards Act, breach of an employee handbook, and violation of public policy. Rohlehr was terminated after filing complaints with the National Labor Relations Board (NLRB) regarding union activities, followed by disciplinary notices for job performance issues. The NLRB dismissed his subsequent complaint, concluding termination was due to unsatisfactory performance. The Hospital moved for summary judgment. The court granted the Hospital's motion, dismissing all claims because the Labor Law § 740 claim did not involve public health or safety, the § 740 filing waived other contractual claims, the FLSA claim did not pertain to FLSA violations, and New York does not recognize a common law cause of action for abusive discharge.

WhistleblowerRetaliationWrongful TerminationSummary JudgmentLabor LawEmployee RightsEmployment ContractPublic PolicyNational Labor Relations BoardUnion Activities
References
23
Case No. MISSING
Regular Panel Decision

Claim of Cummins v. North Medical Family Physicians

A claimant sustained a work-related back injury and sought continued medical treatment, which was initially authorized. Disputes over authorization led the claimant to retain an attorney. A Workers’ Compensation Law Judge authorized continued medical treatment but denied counsel fees, stating no "money passing" occurred. The Workers' Compensation Board upheld this decision. The claimant appealed, arguing the Board unconstitutionally applied Workers’ Compensation Law § 24, misinterpreted the statute regarding fee payment from medical benefits, and abused its discretion. The appellate court affirmed the Board's decision, ruling that counsel fees must be paid from "compensation," defined as a money allowance, and medical benefits are not considered "compensation" for this purpose, thus finding no abuse of discretion.

Workers' CompensationCounsel FeesAttorney FeesMedical TreatmentStatutory InterpretationConstitutional LawLienCompensation DefinitionAppellate ReviewBoard Decision
References
3
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