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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

Giles v. Gi Yi

The dissenting opinion by Justice Whalen challenges the majority's interpretation of 22 NYCRR 202.17, which mandates personal injury plaintiffs to secure an expert witness report on causation and provide it to the defense prior to the defendant's medical examination of the plaintiff. Whalen argues this requirement is an undue burden and is not explicitly outlined within the regulation's scope. The dissent emphasizes that 22 NYCRR 202.17 (b) (1) only requires disclosure of reports from 'medical providers who have previously treated or examined the party seeking recovery,' distinct from expert reports generated solely for litigation purposes. Furthermore, Justice Whalen asserts that expert disclosure is governed by CPLR 3101 (d), which does not necessitate such early disclosure, and finds that the Supreme Court's decision to compel was an abuse of discretion, concluding that Nero v Kendrick was wrongly decided.

Expert Witness DisclosureCausationMedical ExaminationPersonal InjuryCivil Procedure Law and Rules (CPLR)Uniform Civil Rules for the Supreme Court and County Court (22 NYCRR)Dissenting OpinionJudicial DiscretionPreclusionLitigation Expenses
References
2
Case No. ADJ7399938 ADJ7068967
Regular
Jun 23, 2015

OLENA GARCIA vs. RESIDENCE INN, NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA

The Appeals Board granted reconsideration, rescinded the prior award, and returned the case for further development of the record. The initial award found permanent total disability based on a vocational expert's opinion, but the Board found this opinion lacked substantial medical evidence. Specifically, the medical expert's supplemental report was not based on a current evaluation, and the vocational expert's conclusions, relying on that report, were therefore also flawed. The matter is remanded to allow for a current medical evaluation and reassessment of vocational rehabilitation and diminished earning capacity.

Workers' Compensation Appeals BoardPermanent Total DisabilityJoint Findings and AwardVocational ExpertSubstantial EvidenceScheduled RatingFunctional Capacity EvaluationAgreed Medical ExaminerApportionmentModified Work
References
0
Case No. ADJ7454504
Regular
Aug 01, 2019

JANE ELLIS vs. CALIFORNIA DEPARTMENT OF SOCIAL SERVICES legally uninsured, administered by YORK RISK SERVICES GROUP

The Workers' Compensation Appeals Board granted reconsideration and rescinded the prior Findings and Award. The Board found that the agreed medical examiner's opinion on permanent disability was not substantial evidence because it was based on an outdated medical examination and an inaccurate assumption about the applicant's current medications. Additionally, the Board noted that vocational expert reports failed to address the impact of apportionment. The case is returned to the WCJ for further proceedings to obtain updated medical opinions and address vocational expert reporting deficiencies.

Petition for ReconsiderationFindings and AwardAgreed Medical ExaminerQualified Medical ExaminerPermanent DisabilityApportionmentSubstantial EvidenceInadequate Medical HistoryVocational ExpertLabor Code Section 5903
References
10
Case No. ADJ635934
Regular
Sep 09, 2010

FRANCES LARUE vs. NORDMAN, CORMANY, HAIR & COMPTON, STATE COMPENSATION INSURANCE FUND

Here's a summary of the case for a lawyer in four sentences: The Workers' Compensation Appeals Board granted reconsideration of an administrative law judge's award finding permanent total disability and no apportionment for an applicant's back injury. The Board rescinded the award, finding the judge erred by relying on an orthopedist's opinion that failed to properly apportion disability to pre-existing scoliosis. The case is remanded for further proceedings to incorporate the apportionment opinion of the defendant's medical expert, who found 70% of the disability attributable to non-industrial scoliosis. A dissenting opinion argued that the defendant's medical expert's apportionment was also insufficient.

ApportionmentPermanent Total DisabilityQualified Medical EvaluatorOrthopedistDegenerative ScoliosisCausationLabor Code Section 4663Senate Bill 899Substantial EvidenceFindings and Award
References
2
Case No. ADJ1577836
Regular
May 04, 2009

JESUS GAVINO-REMIGIO vs. STRATUS SERVICES GROUP, STATE COMPENSATION INSURANCE FUND

This case concerns an applicant injured when stepping on a metal hook, sustaining an admitted industrial injury to his right foot. The applicant sought reconsideration after the Workers' Compensation Judge (WCJ) denied findings that the injury also affected his internal systems (diabetes), eyes, and psyche, along with associated disability. The Board denied reconsideration, finding the defendant's medical expert's opinion on non-industrial diabetes causation to be substantial evidence, while deeming the applicant's medical experts' opinions insufficient. A dissenting commissioner argued the applicant's medical evidence sufficiently supported industrial causation for diabetes aggravation, warranting reconsideration.

Workers' Compensation Appeals Boardindustrial injuryright footinternal systemseyespsychediabetes mellituspermanent disabilitytemporary disabilityGerald Markovitz M.D.
References
5
Case No. ADJ2186466
Regular
Jun 26, 2017

AMADO URIAS vs. VALLEY COUNTY WATER DISTRICT

This case involves Amado Urias's petition for reconsideration of a Supplemental Findings and Award that determined his permanent disability at 54% after apportionment. Urias argued that his vocational expert's opinion on diminished earning capacity should have been prioritized over the medical opinions regarding his physical and psychiatric limitations. The Workers' Compensation Appeals Board denied the petition, affirming the administrative law judge's decision. The Board found that the issue of psychiatric apportionment was previously adjudicated and that the vocational expert's opinion was not substantial evidence due to its reliance on subjective complaints over objective medical findings.

Workers' Compensation Appeals BoardSupplemental Findings and AwardPermanent DisabilityApportionmentVocational ExpertDr. Albert SimpkinsDr. StewartDr. WixenDr. AhmedCumulative Injury
References
1
Case No. MISSING
Regular Panel Decision

Claim of Tucker v. City of Plattsburgh Fire Department

Justice Egan Jr. dissents from the majority's decision, arguing that the Workers' Compensation Board abused its discretion in characterizing the medical expert's proof as speculative. The dissent focuses on the expert opinion of Michael Lax, who found a probable causal connection between the claimant's occupation as a firefighter, his exposure to carcinogenic materials, and his diagnosed prostate cancer. Lax's opinion was based on the claimant's 24 years of exposure, absence of other prostate cancer risk factors, and epidemiological studies. The dissent emphasizes that medical opinions do not require absolute certainty, only a reasonable probability supported by a rational basis. The dissent notes that at various administrative stages, a causal relationship was found, highlighting the lack of unanimity in the final Board decision.

Prostate CancerFirefighterCausal ConnectionMedical Expert OpinionSpeculative ProofWorkers' Compensation LawOccupational ExposureCarcinogenic MaterialsDissenting OpinionBurden of Proof
References
3
Case No. ADJ2709955 (MON 0356320)
Regular
Jun 21, 2017

Mario Cocola vs. California Hospital Medical Center

The Workers' Compensation Appeals Board denied Mario Cocola's petition for reconsideration, upholding the finding that he sustained $69\%$ permanent disability from industrial injuries. Cocola argued the administrative judge erred by disregarding the Agreed Medical Examiner's opinion that he was totally disabled from the open labor market due to orthopedic injuries. The Board agreed with the judge's report that the physician's opinion lacked sufficient objective basis for the change in work restrictions. A dissenting opinion argued the medical and vocational evidence supported a $100\%$ permanent disability finding and requested clarification from the medical examiner.

Petition for ReconsiderationFindings of Fact and Awardpermanent disabilitycumulative traumalumbar spinecervical spinepsychecervicogenic headachesEmergency Unit CoordinatorAgreed Medical Examiner
References
1
Case No. ANA 0290076
Regular
May 28, 2008

CHERI ESTRADA vs. GATEWAY/ANAHEIM HARBOR MEDICAL GROUP, CALIFORNIA INSURANCE GUARANTEE ASSOCIATION, FREMONT INDEMNITY INSURANCE COMPANY

This case concerns an applicant who sustained an admitted industrial injury in 1994 resulting in spinal, head, and limb impairments. The applicant sought reconsideration of the Workers' Compensation Appeals Board's (WCAB) denial of 100% permanent disability, arguing her physical limitations and medication rendered her unemployable. The WCAB majority denied reconsideration, adopting the judge's prior findings. However, a dissenting commissioner argued that the applicant's multiple surgeries, medication side effects, failure in vocational rehabilitation, and vocational expert opinions supported a finding of 100% permanent disability.

Workers' Compensation Appeals BoardIndustrial injuryFremont Indemnity Insurance CompanyCalifornia Insurance Guarantee AssociationPermanent disabilityLife pensionVocational rehabilitationAgreed medical evaluatorIndependent vocational expertOpen labor market
References
1
Case No. ADJ11255525
Regular
Dec 02, 2019

GWENDOLYN JOHNIGAN vs. UC DAVIS MEDICAL CENTER

This case involves an applicant denied workers' compensation benefits for industrial injury to her right leg and knee, with the Workers' Compensation Appeals Board (WCAB) denying her petition for reconsideration. The WCAB adopted the administrative law judge's finding that the applicant did not sustain industrial injury, relying on a panel qualified medical evaluator's opinion that the work duties were insufficient to cause an injury. The applicant argued the medical evidence was not substantial and sought further development of the record. However, the WCAB found the applicant failed to meet her burden of proof with substantial medical evidence. A dissenting opinion argued the medical evidence was insubstantial and required further development.

Petition for ReconsiderationPanel Qualified Medical EvaluatorOrthopedistSubstantial Medical EvidenceFurther DevelopmentSupplemental ReportingDeposition TestimonyIndustrial InjuryRight LegRight Knee
References
4
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