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

Case No. ADJ18803348
Regular
May 30, 2025

FEDERICO PEREZ vs. FIRST BAPTIST CHURCH OF WALNUT CREEK, WALNUT CREEK CHRISTIAN ACADEMY, CHURCH MUTUAL INSURANCE COMPANY

The Workers' Compensation Appeals Board denied the petition for reconsideration filed by the defendants, First Baptist Church of Walnut Creek, Walnut Creek Christian Academy, and Church Mutual Insurance Company, in the case of applicant Federico Perez. The applicant alleged a right shoulder injury on September 7, 2023. The defendants were admonished for violating WCAB Rule 10945 by misstating material facts and referencing documents not in the trial record. The Board affirmed the WCJ's findings that the applicant provided pre-termination notice of the injury, and established injury arising out of and in the course of employment (AOE/COE) and entitlement to temporary total disability, based on credible testimony and the Panel QME report of Dr. Adam Brooks. The decision also addressed the timeliness of the Board's action on reconsideration petitions under Labor Code section 5909 and the post-termination defense under Labor Code section 3600(a)(10).

WCABPetition for ReconsiderationLabor Code Section 5909Electronic Adjudication Management SystemEAMSTransmission of CaseNotice of TransmissionReport and RecommendationWCAB Rule 10945Misstatement of Facts
References
6
Case No. ADJ6990407
Regular
Nov 02, 2011

DANIEL CHESNUT vs. MANTECA POLICE DEPARTMENT, MUNICIPAL POOLING WALNUT CREEK

The Workers' Compensation Appeals Board denied the applicant's petition for reconsideration. The applicant, a police officer, sought to establish that his testicular cancer was presumptively industrial under Labor Code section 3212.1. However, the Agreed Medical Evaluator concluded that the cancer's manifestation fell outside the established ten-year minimum latency period for solid tumors, thus rebutting the statutory presumption. The Board found this conclusion to be substantial evidence, particularly as the applicant's cancer was not characterized by extreme aggressiveness or massive exposure doses that might shorten latency.

Workers' Compensation Appeals BoardDaniel ChesnutManteca Police DepartmentMunicipal Pooling Walnut CreekADJ6990407Petition for ReconsiderationLabor Code section 3212.1testicular cancerinjurious exposurepolice officer
References
7
Case No. MISSING
Regular Panel Decision
May 29, 2009

Kilmetis v. Creative Pool & Spa, Inc.

The plaintiff, an employee of Complete Construction Alternatives, Inc., sustained personal injuries on October 3, 2006, after falling from a scaffold while finishing siding on a garage roof. He initiated a personal injury action against Creative Pool and Spa, Inc., alleging a violation of Labor Law § 240 (1) and asserting Creative Pool was the general contractor. The Supreme Court of Nassau County denied the plaintiff's motion for summary judgment and granted the defendant's cross-motion, dismissing the complaint. On appeal, the order was affirmed, with the court finding that Creative Pool was neither a general contractor nor an agent for liability under Labor Law § 240 (1) concerning the plaintiff's work. This decision was based on evidence that Creative Pool did not supervise or control the plaintiff's work, provided no equipment, and was not present at the site on the accident date.

Personal InjuryScaffold AccidentConstruction Site SafetyLabor Law § 240(1)Summary JudgmentGeneral Contractor LiabilityAgent LiabilityAppellate ReviewNew York LawWorkplace Accident
References
12
Case No. MISSING
Regular Panel Decision

Commer v. American Federation of State, County & Municipal Employees

Roy Commer, a pro se plaintiff, sued the American Federation of State, County and Municipal Employees (AFSCME) alleging violations of federal labor laws, specifically LMRDA §§ 101(a)(2) and 501, LMRA § 301, and 29 U.S.C. § 158, seeking reinstatement as president of Local 375 and substantial damages. AFSCME moved to dismiss all claims and requested sanctions. The court granted the motion to dismiss, finding that the LMRDA § 501 claim against AFSCME was not cognizable under the statute and that the claim against John/Jane Does lacked jurisdiction. The LMRA § 301 claim was dismissed due to collateral estoppel and failure to allege a specific contract breach. The LMRDA § 101 claim was dismissed administratively due to a pending identical prior action. Lastly, the 29 U.S.C. § 158 claim was found to be preempted by the National Labor Relations Act. The court, however, denied AFSCME's motion for sanctions against Commer, citing his pro se status while issuing a warning against future re-litigation of already dismissed claims.

Federal Labor LawLabor Management Reporting and Disclosure ActLabor Management Relations ActNational Labor Relations ActMotion to Dismiss GrantedSanctions DeniedCollateral EstoppelPreemption DoctrinePro Se LitigationUnion Officer Removal
References
43
Case No. MISSING
Regular Panel Decision

Suffolk County Ass'n of Municipal Employees, Inc. v. County of Suffolk

The plaintiff, Suffolk County Association of Municipal Employees, Inc., appealed an order dismissing its complaint against Suffolk County. The Union sought to permanently enjoin the County from imposing mandatory furloughs and discharging employees under a collective bargaining agreement. The Supreme Court had dismissed the complaint for lack of subject matter jurisdiction and denied a preliminary injunction. The appellate court modified the order, finding that the Supreme Court has subject matter jurisdiction. However, it affirmed the denial of the preliminary injunction, stating that loss of employment does not constitute irreparable harm as affected workers are entitled to reinstatement and back pay if they prevail.

Public EmploymentCollective Bargaining AgreementMandatory FurloughsEmployee DischargeSubject Matter JurisdictionPreliminary InjunctionIrreparable HarmBudget DeficitPersonnel ReductionsAppellate Review
References
11
Case No. MISSING
Regular Panel Decision

Best Quality Swimming Pool Service, Inc. v. Pross

This case concerns a breach of contract action for swimming pool construction. The defendant sought to dismiss the plaintiffs' complaint, arguing that one of the plaintiff corporations, Swim World Pool and Spa, Inc., lacked the required Nassau County home improvement license. Plaintiffs, Best Quality Swimming Pool Service, Inc. and Swim World Pool and Spa, Inc., both owned by Jairo Arango, operated together, with Best Quality holding the necessary license. The court denied the defendant's motion to dismiss, finding that denying payment would be an excessive penalty given that Best Quality was licensed, aligning with the rationale of Marraccini v Ryan. Additionally, the court granted the plaintiffs' cross-motion to amend their complaint to include the licensing details for Best Quality Swimming Pool Service, Inc.

Home Improvement LicenseCorporate LiabilityBreach of ContractMotion to DismissAmended ComplaintNassau County Administrative CodeCPLR 3015(e)Licensing RequirementsCorporate VeilSubstantial Compliance
References
8
Case No. MISSING
Regular Panel Decision

Board of Education of Yonkers City School District v. Yonkers Municipal Civil Service Commission

The Board of Education of the Yonkers City School District initiated a CPLR article 78 proceeding to review the Yonkers Municipal Civil Service Commission's determination. The Commission had reinstated Michael DeMuro, a custodial worker, after charges of incompetence and misconduct. This case is a further review following a prior remittal where the Commission violated Civil Service Law § 76 (2) by considering external evidence. The Supreme Court, Westchester County, annulled the Commission's latest determination and transferred the case. This Court (Appellate Division) found the transfer improper as the 'substantial evidence' standard was not applicable. The Court annulled the Commission's determination, vacated the Supreme Court's judgment, denied the cross-petition, and remitted the matter to the Commission for a third determination in strict compliance with Civil Service Law § 76.

Civil Service LawCPLR Article 78Administrative LawJudicial ReviewDue ProcessRemittalAnnulmentDisciplinary ProceedingCustodial WorkerIncompetence
References
3
Case No. ADJ3445498 (SFO 0440451) ADJ4010324 (SFO 0496717)
Regular
Jun 30, 2011

JAMES PETERS vs. FEDERAL EXPRESS, SEDGWICK WALLNUT CREEK

This case concerns a Petition for Reconsideration filed by Federal Express and Sedgwick Walnut Creek after an award was made to James Peters for new and further permanent disability. The Appeals Board denied the reconsideration, adopting the Administrative Law Judge's (ALJ) report. The ALJ found sufficient medical evidence of new and further permanent disability based on Agreed Medical Evaluator Dr. Feinberg's reports, leading to an adjusted award of 54% permanent disability. The Board also noted that the defendant's petition contained sanctionable misrepresentations and mis-citations regarding legal precedent.

Workers' Compensation Appeals BoardPetition for ReconsiderationLabor Code section 40672 HannaCalifornia Law of Employee Injuries and Workers' CompensationAgreed Medical EvaluatorQualified Medical EvaluatorPetition to ReopenNew and Further Permanent DisabilityStipulations with Request for Award
References
1
Case No. MISSING
Regular Panel Decision
Apr 05, 2004

Laratro v. City of New York

This document presents a dissenting opinion concerning a tort claim against a municipality for injuries sustained due to a failure to provide emergency assistance, a governmental function typically protected by immunity. The dissent argues that the plaintiff failed to establish a 'special relationship' with the municipality, specifically the 'direct contact' element, as contact was made by a coworker rather than the injured party. The opinion emphasizes that expanding the definition of direct contact to include non-family or non-contractual third parties should be a legislative or higher court decision due to the lack of precedent and potential for significantly increased municipal liability. The majority, however, reversed the lower court's decision, denying the municipal defendants' motion for summary judgment and reinstating the complaint.

Special relationship doctrineMunicipal immunityDirect contactEmergency services liabilityTort lawSummary judgmentNew York appellate courtGovernmental functionCoworker contact
References
25
Case No. MISSING
Regular Panel Decision

Barenboim v. Starbucks Corp.

In this dissenting opinion, Judge Smith argues that Labor Law § 196-d, which prohibits employers from demanding or accepting parts of employee gratuities, is inapplicable to disputes over how a common tip pool is shared among employees. The dissent contends that the statute's purpose is to prevent employers from retaining tips meant for employees, not to regulate the internal distribution of pooled tips. Drawing a distinction from federal law and referencing a similar California case, Jou Chau v Starbucks Corp., the judge concludes that extending the statute to tip pooling among employees unnecessarily complicates the law and creates avenues for excessive regulation and litigation, despite agreeing with the majority's outcome in favor of Starbucks.

tip poolingLabor Law § 196-dgratuitieswage disputesemployer responsibilityemployee rightsstatutory interpretationdissenting opinionNew York lawCalifornia Labor Code
References
3
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