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

Case No. 03-cv-4134
Regular Panel Decision

Infantolino v. Joint Industry Board of the Electrical Industry

Anthony Infantolino sued the Joint Industry Board of the Electrical Industry (JIB) and Thomas Bush, alleging unlawful retaliation under the Americans with Disabilities Act (ADA) and New York State/City laws. JIB moved for summary judgment, arguing procedural defects and substantive failures, including that it was not Infantolino's employer. The court found JIB to be a 'joint labor-management committee' and thus a 'covered entity' under the ADA, refuting the employer argument. The court denied summary judgment regarding the retaliation claims, finding genuine issues of fact as to whether JIB's stated reasons for its actions were pretexts for impermissible retaliation. However, the motion for summary judgment was granted in part, denying punitive and compensatory damages for the ADA retaliation claim and punitive damages for the New York State Human Rights Law claim, but allowing punitive damages for the New York City Human Rights Law claim.

ADA RetaliationDisability DiscriminationSummary JudgmentBurden-Shifting FrameworkCausal ConnectionPretextPunitive DamagesCompensatory DamagesNew York City Human Rights LawNew York State Human Rights Law
References
36
Case No. ADJ8269895
Regular
Jan 31, 2018

FERMIN SANDOVAL vs. WATERPROOFING ASSOCIATES, CYPRESS INSURANCE, BERKSHIRE HATHAWAY

This case involves an applicant seeking reconsideration of a workers' compensation award finding a 50% permanent disability from a back and right knee injury. The applicant argued he was permanently and totally disabled, that the WCJ erred by considering non-industrial factors, and that his average weekly wage was miscalculated. The Board affirmed the original award, finding that while an applicant can rebut a scheduled rating by showing impairment of rehabilitation due to the industrial injury, this applicant's vocational limitations stemmed from non-industrial factors like illiteracy and language barriers. Therefore, the Board concluded the applicant did not meet his burden to prove a greater loss of earning capacity due solely to the industrial injury as required by *Ogilvie*.

Workers' Compensation Appeals BoardSecond Petition for ReconsiderationFindings and AwardPermanent DisabilityLabor Code Section 4662(b)Average Weekly WageLabor Code Section 4453(C)(1)Labor Code Section 4453(C)(3)Ogilvie v. Workers' Comp. Appeals Bd.Scheduled Rating
References
2
Case No. ADJ7037475
Regular
Oct 04, 2018

JESUS ROJAS vs. GAY AND LESBIAN COMMUNITY CENTER, INC.; STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board denied Jesus Rojas's petition for reconsideration, affirming the administrative law judge's award of 81% permanent disability for his admitted industrial spine injury. Rojas argued for 100% permanent disability based on an Agreed Medical Examiner's opinion of inability to return to the labor market and contended apportionment to non-industrial factors was unsubstantiated. The Board found the apportionment to pre-existing congenital stenosis was supported by medical evidence and that the *Hikida* case did not apply as Rojas's disability was not directly caused by the effects of medical treatment necessitated by both industrial and non-industrial factors. Furthermore, the Board held that Labor Code section 4662(b) does not create an independent pathway to permanent total disability.

Petition for ReconsiderationFindings of Fact and AwardPermanent DisabilityApportionmentAgreed Medical Examiner (AME)Labor Code section 4656Labor Code section 4658Labor Code section 4662(b)Hikida v. Workers' Comp. Appeals. Bd.non-industrial factors
References
2
Case No. 71 Civ. 2381
Regular Panel Decision
May 27, 1971

Botany Industries, Inc. v. New York Joint Board, Amalgamated Clothing Workers of America

Botany Industries, Inc., an employer, sought to vacate a labor arbitration award, while the New York Joint Board, Amalgamated Clothing Workers of America, the union, sought its confirmation and enforcement. The dispute arose from a 1966 agreement between Botany and the Joint Board, which restricted Botany from doing business with non-union manufacturers of boys', students', and junior clothing and from licensing its 'Botany' trademark under similar conditions. Botany argued these provisions constituted an illegal 'hot cargo' agreement under section 8(e) of the Labor Management Relations Act. The union contended the agreement was protected by the 'garment industry exemption' or was a 'work preservation clause.' The court, presided over by Chief Judge Edelstein, found it had jurisdiction to review the award. It determined Botany did not fall under the garment industry exemption, nor was the agreement a valid work preservation clause. Consequently, the court held the agreement void and unenforceable, thereby vacating Arbitrator Gray's award.

Labor LawArbitration AwardHot Cargo ClauseGarment Industry ExemptionCollective Bargaining AgreementJudicial ReviewUnfair Labor PracticeUnion AgreementContract EnforcementTrademark Licensing
References
40
Case No. ADJ2570690 (BAK 0136703) ADJ2091641 (BAK 0136704) ADJ2368957 (BAK 0136705)
Regular
Feb 01, 2016

WESLEY CHAMBERS vs. SCHLUMBERGER DOWELL, TRAVELERS INDEMNITY COMPANY OF ILLINOIS, TRAVELERS INSURANCE COMPANY

In this Workers' Compensation Appeals Board decision, the applicant sustained a 100% permanent disability award due to orthopedic and psychiatric injuries. The Board granted reconsideration, agreeing with the applicant's total permanent disability but finding the prior apportionment to non-industrial factors was insufficient. The Board amended the award to incorporate a 15% apportionment to non-industrial factors based on medical opinion, reducing the compensable permanent disability to 85%, and returned the case for a new rating. This adjustment stems from the applicant's pre-existing "family problems" which contributed to his psychiatric condition, independent of his industrial injuries.

Workers' Compensation Appeals BoardReconsiderationPermanent DisabilityApportionmentCumulative TraumaPsychiatric InjuryOrthopedic InjuryAgreed Medical ExaminerQualified Medical EvaluatorMedical Evidence
References
1
Case No. MON 0240201
Regular
Apr 09, 2008

CAROL CHARON vs. RALPHS GROCERY COMPANY, SEDGWICK CLAIMS SERVICES

This case involves an applicant seeking reconsideration of a workers' compensation award concerning psychiatric injury. The Appeals Board granted reconsideration, rescinding the prior decision because the judge's apportionment of permanent disability to non-industrial factors was not adequately supported by medical evidence. The Board requires further medical clarification on what specific non-industrial factors occurring *after* a prior award are responsible for the increased disability, consistent with evolving apportionment laws.

ReconsiderationApportionmentIndustrial InjuryPsychePermanent DisabilityAgreed Medical EvaluatorVargasLabor Code Section 4663SB 899Marsh
References
2
Case No. ADJ3026623
Regular
Jun 28, 2010

ROBERTO PICENO vs. KLUNE INDUSTRIES, INC.; CIGA, administered by CAMBRIDGE for FREMONT, in liquidation

This case involves a defendant's petition for reconsideration of an award of permanent disability for an applicant's industrial injuries sustained on January 22, 1997. The defendant argued for apportionment of the permanent disability to non-industrial factors and to a cumulative trauma injury. The Workers' Compensation Appeals Board (WCAB) dismissed the defendant's petition because it was unverified, a mandatory requirement. The WCAB found the defendant failed to cure this defect within a reasonable time after it was pointed out. Therefore, the defendant's contentions regarding apportionment were not addressed on their merits by the WCAB.

Workers' Compensation Appeals BoardPetition for ReconsiderationUnverified PetitionLabor Code Section 5902ApportionmentCumulative TraumaSpecific InjuryAgreed Medical ExaminerQualified Medical EvaluatorSubstantial Evidence
References
1
Case No. ADJ3925996 (FRE 0180480) ADJ360469 (FRE 0198851)
Regular
Oct 01, 2012

MICHAEL AKINS vs. THE SALVATION ARMY, Permissibly Self-Insured

In this workers' compensation case, the defendant, The Salvation Army, seeks to deny liability for applicant Michael Akins' recommended spinal surgery. While Akins sustained industrial injuries to his neck and back in 1998 and 2001, a subsequent non-industrial car accident in 2008 displaced hardware from his prior industrial surgery. The Board found that the industrial injury was a substantial contributing factor to the need for the current surgery, even though the non-industrial accident was the "most proximate cause." Therefore, the defendant remains liable for the recommended surgical intervention.

Workers' Compensation Appeals BoardPetition for ReconsiderationFindings of Fact and OrderIndustrial InjurySpinal SurgeryPrimary Treating PhysicianNon-Industrial Motor Vehicle CollisionIntervening EventAgreed Medical ExaminerCausation
References
1
Case No. ADJ8008859
Regular
Nov 05, 2020

MADELINE CASACCA vs. STATE OF CALIFORNIA, DEPARTMENT OF CORRECTIONS and REHABILITATION, CTF SOLEDAD, STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board denied the defendant's petition for reconsideration of a prior award. The Board found that the defendant failed to provide substantial evidence for apportionment of applicant's disability, as the QME's opinion lacked sufficient explanation of how non-industrial factors caused the disability. Additionally, the Board determined that the Labor Code section 4658(d)(3)(A) reduction in indemnity was inapplicable because the applicant had already returned to work in her regular position. Commissioner Lowe dissented, arguing that the QME's apportionment of 10% disability to non-industrial factors constituted substantial evidence.

Workers' Compensation Appeals BoardAdjudication NumberFindings and AwardPetition for ReconsiderationInjury AOE/COEPermanent Partial DisabilityLabor Code section 4658(d)(3)(A)Fifteen Percent ReductionOrthopedic Qualified Medical ExaminerApportionment
References
5
Case No. ADJ1955186
Regular
Apr 14, 2023

ROBERT JELENIC vs. LOS ANGELES DEPARTMENT OF WATER AND POWER

This case involves a dispute over permanent and total disability following a 1997 industrial injury. The Appeals Board affirmed the finding of permanent and total disability, including the applicant's upper and lower back in the industrial injury. However, the Board rescinded the original finding that apportionment to non-industrial factors was inapplicable, stating apportionment under Labor Code section 4663 should be considered. The majority found Dr. Richman's apportionment opinions did not provide substantial evidence for apportionment, while the dissenting opinion argued for further development of the record regarding apportionment to a 1992 non-industrial injury.

Permanent Total DisabilityApportionmentLabor Code Section 4662(a)(4)Agreed Medical Examiner (AME)Vocational FeasibilityCognitive ImpairmentSub Rosa Videos1997 PDRSPermanent Impairment RatingPre-existing Condition
References
10
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