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

Case No. 2023 NY Slip Op 03881
Regular Panel Decision
Jul 19, 2023

TJG Realty of Rockland, LLC v. Con Serv Constr., Inc.

This case involves two related actions for property damage after a fire at a commercial building. Plaintiffs TJG Realty of Rockland, LLC, Excelsior Estate Homes, LLC, Timothy Gulla, and E. Daskal Corp. sued Con Serv Construction, Inc., alleging negligence in installing a waste oil heater and storing flammable materials. A jury trial found in favor of Con Serv, determining the fire did not originate in the heater. The Supreme Court granted a directed verdict on one negligence theory but denied another. The Appellate Division affirmed the clerk's judgment, concluding the jury's verdict was a fair interpretation of the evidence and any error in the directed verdict was harmless due to the jury's finding on the fire's origin.

Property DamageFireNegligenceJury VerdictExpert TestimonyCausationWaste Oil HeaterFlammable MaterialsAppellate ReviewWeight of Evidence
References
10
Case No. 2014 NYSlipOp 06768 [121 AD3d 441]
Regular Panel Decision
Oct 07, 2014

Williams v. Air Serv Corp.

The Appellate Division, First Department, affirmed an order from the Supreme Court, New York County, which granted class certification to plaintiffs in a wage dispute against Air Serv Corporation. The plaintiffs, including Brenda Williams, alleged underpayment due to a policy originating from an Air Serv supervisor at John F. Kennedy International Airport. The court found that the plaintiffs met the prerequisites for class action certification under CPLR 901 and 902, demonstrating common issues of law and fact, typicality, and adequate representation. It also determined that a class action was superior to individual administrative proceedings due to litigation costs and modest individual damages, upholding the lower court's decision.

class action certificationwage disputeCPLR 901CPLR 902appellate reviewemployment lawclass representationcommonalitytypicalitysuperiority of class action
References
6
Case No. ADJ7937768
Regular
Apr 01, 2016

MARTHA SANCHEZ vs. JIB HOLDINGS dba JACK IN THE BOX, CALIFORNIA RESTAURANT MUTUAL BENEFIT CORP.

The Workers' Compensation Appeals Board denied a lien claimant's petition for reconsideration of an order dismissing its lien. The WCJ initially dismissed the lien for non-appearance at a lien conference, but the lien claimant argued it was not properly served with the Notice of Intention to Dismiss (NOI). Although the NOI was served on the lien claimant's representative at the correct address, making service technically proper, the subsequent dismissal order was defectively served. However, this defect only made the reconsideration petition timely, and the Board denied the petition on its merits, adopting the WCJ's reasoning.

Lien ClaimantPetition for ReconsiderationOrder Dismissing LienNotice of Intention to Dismiss LienLien ConferenceMinutes of HearingProof of ServiceOfficial Address RecordHarmless ErrorDefective Service
References
2
Case No. 2022 NY Slip Op 01453
Regular Panel Decision
Mar 09, 2022

Matter of County of Nassau v. Civil Serv. Empls. Assn., Civ. Serv. Empls. Assn., AFSCME, Local 1000, AFL-CIO

The County of Nassau appealed an order denying its petition to permanently stay arbitration and granting the respondents' motion to compel arbitration. The dispute arose when the Civil Service Employees Association (CSEA), on behalf of Joseph W. Grzymalski, a seasonal worker, filed a grievance claiming he was entitled to full-time benefits due to working 40 hours per week. The Appellate Division, Second Department, reversed the Supreme Court's order, ruling that the reclassification of a civil service position, like Grzymalski's, can only be accomplished by the municipal civil service commission as per Civil Service Law § 22, thus rendering the grievance nonarbitrable. Consequently, the Appellate Division granted the County of Nassau's petition to permanently stay arbitration and denied the respondents' motion to compel arbitration.

ArbitrationPublic Sector EmploymentCivil Service LawGrievanceReclassificationSeasonal WorkerFull-Time BenefitsCollective Bargaining AgreementAppellate ReviewJudicial Review
References
6
Case No. 534536
Regular Panel Decision
Jun 09, 2022

Matter of Harmon v. Office of Children & Family Servs.

Claimant Wesley Harmon appealed a Workers' Compensation Board decision finding a 20% schedule loss of use (SLU) of his left arm and reducing his counsel fees. Harmon sustained a left shoulder injury in 2018, with conflicting medical opinions from orthopedists John Goldblatt (20% SLU) and Frederick Kaempffe (50% SLU). The Board credited Goldblatt's assessment, finding it consistent with Harmon's medical history and current guidelines which no longer add a percentile for rotator cuff tears, and reduced counsel fees. The Appellate Division affirmed the Board's determination, holding that it was supported by substantial evidence and that the Board exercised proper discretion in weighing medical evidence and setting counsel fees.

Workers' CompensationSchedule Loss of UseLeft Arm InjuryShoulder Impingement SyndromeRotator Cuff TearMedical Expert OpinionConflicting Medical EvidenceMaximum Medical ImprovementAppellate ReviewCounsel Fees
References
12
Case No. 2014-1326 Q C
Regular Panel Decision
Jul 21, 2017

Jaga Med. Servs., P.C. v. American Tr. Ins. Co.

This case involves an appeal by Jaga Medical Services, P.C. and Eva Lambert against American Transit Ins. Co. from an order of the Civil Court of the City of New York, Queens County. The plaintiff sought summary judgment for assigned first-party no-fault benefits, while the defendant cross-moved for summary judgment to dismiss several causes of action. The Civil Court denied parts of the plaintiff's motion and granted parts of the defendant's cross-motion, leading to the dismissal of the first, second, and fifth through eighth causes of action. The Appellate Term, Second Department, affirmed the lower court's order, concluding that the defendant successfully demonstrated a lack of medical necessity through a sworn peer review report, which the plaintiff failed to sufficiently rebut. Furthermore, the defendant's use of the workers' compensation fee schedule for determining payment amounts for other services was found to be proper.

no-fault benefitssummary judgmentmedical necessitypeer review reportworkers' compensation fee scheduleappellate reviewcivil courtfirst-party benefitsassigned claimsprofessional coder
References
2
Case No. ADJ397148 (VNO 0391584)
Regular
Jan 20, 2016

Julie Scheuer vs. COUNTY OF LOS ANGELES, ACCLAMATION INSURANCE MANAGEMENT SERVICE

The Workers' Compensation Appeals Board (WCAB) dismissed Julie Scheuer's petition for reconsideration of a prior award. The petition was dismissed because it was not properly served on all necessary parties as required by California law, including the employer and their adjusting agency. Even if the petition had been properly served, the WCAB stated it would have denied it on its merits based on the WCJ's report. Therefore, the WCAB's order is to dismiss the applicant's petition for reconsideration.

Workers' Compensation Appeals BoardJulie ScheuerCounty of Los AngelesAcclamation Insurance Management ServiceFindings of Fact and Awardpermanent disabilityapportionmentPetition for ReconsiderationLabor Code section 5905service
References
1
Case No. ADJ10062283
Regular
Jan 08, 2016

MARIA CARVALHO vs. IN-HOME SUPPORTIVE SERVICES, CALIFORNIA DEPARTMENT OF SOCIAL SERVICES, YORK RISK SERVICES GROUP, INC.

The Workers' Compensation Appeals Board denied York Risk Services Group's petition for reconsideration of a $\$ 200.00$ sanction. The sanction was imposed for York's failure to appear at a hearing for which it was properly served by mail. York failed to provide good cause for its non-appearance, and its assertion of resolving issues telephonically did not excuse the failure to appear. The Board upheld the WCJ's finding that the notice was properly served and no reasonable excuse was offered.

Workers' Compensation Appeals BoardSan Jose District OfficePetition for ReconsiderationOrder Imposing SanctionsFailure to AppearGood CauseNotice of HearingService by MailElectronic Adjudication Management SystemPresumption of Receipt
References
0
Case No. ADJ832058 (VNO 0431183) ADJ2725399 (VNO 0431180)
Regular
Jan 06, 2011

JUDITH VOLKERTS vs. JON B. ARTZ, SEABRIGHT INSURANCE COMPANY, CALIFORNIA INSURANCE GUARANTEE ASSOCIATION for CALIFORNIA COMPENSATION

The Workers' Compensation Appeals Board (WCAB) affirmed the administrative law judge's (WCJ) order rescinding a prior decision due to improper service by the WCAB. The original decision denied the applicant's request to set aside a compromise and release agreement. Because the WCAB failed to properly serve the applicant, the WCJ retained jurisdiction and had the authority to rescind the decision. The case is remanded for further proceedings, including a new decision that must be properly served.

Workers' Compensation Appeals BoardSeabright Insurance CompanyCIGACalifornia Compensationliquidationreconsiderationadministrative law judgerescinded orderservice of processcompromise and release
References
3
Case No. ADJ2071191 (OXN 0127334)
Regular
May 29, 2013

IRENE MCLEAN vs. BRISTOL FARMS, INC., SPRINGFIELD INSURANCE COMPANY

The Workers' Compensation Appeals Board (WCAB) dismissed Irene McLean's Petition for Reconsideration against Bristol Farms, Inc. and Springfield Insurance Company. The petition was dismissed primarily because it was filed untimely, exceeding the statutory 20-day deadline plus 5 days for mailing. Additionally, the petition was not properly served on all adverse parties as required by law. Even if it had been timely and properly served, the WCAB would have denied it on the merits based on the administrative law judge's report.

Petition for ReconsiderationUntimelyDismissalLabor Code § 5903Code of Civil Procedure § 1013ServiceAdverse PartiesLabor Code § 5905WCAB Rules 10505WCAB Rules 10850
References
0
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