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

Case No. ADJ8449286
Regular
Jul 07, 2014

DAVID SIRES vs. CONQUIP, INC., SENTRY SELECT

The applicant seeks reconsideration of a workers' compensation award, specifically challenging the attorney's fee amount. The Appeals Board granted reconsideration to address a procedural defect: the applicant's attorney failed to provide proof of notice to the applicant regarding the requested fee increase, as required by WCAB Rule 10778. The Board issued a notice of intention to dismiss the fee request unless the attorney promptly provides this proof of notice. The Board has deferred judgment on other issues raised in the petition.

WCABPetition for ReconsiderationWCJQualified Medical EvaluatorPanel Qualified Medical EvaluatorAttorney's FeeElectronic Adjudication Management System (EAMS)WCAB Rule 10778Notice of Intention to Dismiss (NIT)Adverse Interest
References
2
Case No. MISSING
Regular Panel Decision

Colarossi v. City of New York

The Supreme Court, New York County, initially granted the plaintiff's motion for leave to serve a late notice of claim. However, this decision was unanimously reversed on appeal, and the motion was subsequently denied. The appellate court determined that the plaintiff's reliance on law office failure did not constitute a reasonable excuse for the delay in serving the notice of claim. Additionally, the plaintiff failed to establish that the City had actual notice of the essential facts within the mandated 90-day period or a reasonable time thereafter, as a Workers’ Compensation Board C-3 form provided by the employer did not link the incident to any claim against the City. Furthermore, the court noted that the plaintiff did not demonstrate that the City remained unprejudiced by the significant delay, particularly given the transitory nature of the alleged defective condition.

Late Notice of ClaimLaw Office FailureActual NoticePrejudiceWorkers' Compensation Board FormC-3 FormMunicipal LiabilityAppellate ReviewDiscretionary RulingReversal
References
5
Case No. MISSING
Regular Panel Decision

United Fire & Casualty Co. v. Boring & Tunneling Co. of America

Boring & Tunneling Company of America (Bortunco), a subcontractor, was not paid by Golf Services Group (contractor) for work performed on public water line projects. Bortunco, seeking payment under a bond secured by United Fire & Casualty Company (surety) as per the McGregor Act, sent a notice of claim. The initial notice lacked a notary's signature and seal on the sworn statement of account, though the statement was properly sworn to by Bortunco's agent. United Fire, after receiving the notice, argued that this defect constituted a failure to comply with the McGregor Act's notice provisions and moved for summary judgment. Bortunco contended it had substantially complied with the Act, or that United Fire had waived its right to assert notice defects, supporting its claim with affidavits confirming the notary's omission was a clerical error. The trial court granted summary judgment in favor of Bortunco, awarding it $142,542.75. On appeal, the court affirmed, holding that the McGregor Act, being remedial, requires only substantial compliance for notice provisions other than deadlines. The court found Bortunco's notice substantially complied as it provided actual notice, contained all essential information, and the defect was a mere clerical error that did not frustrate the statute's purpose.

McGregor ActPayment BondSubstantial ComplianceNotice ProvisionsSworn StatementClerical ErrorSummary JudgmentSuretySubcontractorPublic Works Project
References
16
Case No. ADJ6894498, ADJ6896838
Regular
Jun 26, 2012

Mark Fields vs. CITY OF CATHEDRAL CITY

The WCAB granted reconsideration of the applicant's unverified petition, as failure to verify is not jurisdictional but subject to dismissal discretion. Despite notice, the applicant's attorney failed to cure the verification defect, leading to a notice of intention to sanction the attorney. The Board will now determine sanctions and address the merits of the underlying workers' compensation claims.

Unverified PetitionLabor Code Section 5902WCJ ReportDiscretionary DismissalSanction NoticeBad-Faith ConductFrivolous TacticWillful FailureDue ProcessPaper Record
References
6
Case No. MISSING
Regular Panel Decision
Nov 26, 2002

Alexander v. City of New York

The Supreme Court, Bronx County, affirmed the denial of the petitioner's application for leave to file a late notice of claim. The petitioner failed to provide a reasonable excuse for the delay, did not establish that the respondents had timely notice of the facts, and could not show that the respondents would not be substantially prejudiced. The excuse of awaiting an accident report was deemed unreasonable as the petitioner already possessed necessary information. Furthermore, the workers' compensation report allegedly filed by the employer did not adequately disclose the basis for liability. The substantial passage of time since February 2001 prejudiced the respondents' ability to investigate alleged ladder defects and collect witness testimony.

late notice of claimreasonable excuseprejudiceworkers' compensation reportaccident reportSupreme Courtdenial of applicationfailure to demonstrate noticeinvestigation impairmentwitness testimony
References
2
Case No. ADJ2972057 (LAO 0838464)
Regular
Jul 07, 2014

DONNA NEWTON vs. JACK-IN-THE-BOX, REPUBLIC INDEMNITY COMPANY OF CALIFORNIA

The Workers' Compensation Appeals Board granted reconsideration, finding the defendant's utilization review (UR) decision defective because it was signed by a nurse, not a physician, violating Labor Code section 4610(e). Although the Administrative Law Judge based his original award on a different UR defect, the Board has the power to consider other issues upon granting reconsideration. The Board issued a notice of intention to award aquatic therapy, providing the defendant an opportunity to object.

Workers' Compensation Appeals BoardUtilization ReviewDefective URAquatic TherapyDue ProcessAdministrative Law JudgeSubstantial EvidencePetition for ReconsiderationMedical TreatmentLicensed Physician
References
8
Case No. MISSING
Regular Panel Decision
Oct 15, 2004

Goffredo v. City of New York

The petitioner sought to serve a late notice of claim after developing chronic obstructive pulmonary disease (COPD) due to exposure at the World Trade Center site between 2001 and 2002. The Supreme Court initially denied the application based on a technical affidavit defect and later denied a renewed application as untimely, citing the expiration of the one-year-and-90-day statute of limitations. The appellate court affirmed this decision, holding that the claim accrued in December 2001 when symptoms manifested, not in February 2003 with the formal diagnosis. The majority rejected the argument that the renewed motion should relate back to the original or that the court's delay in decision-making warranted a different outcome. A dissenting opinion argued for reversal, asserting the initial application was timely, the technical defect minor, and the court's delay and invitation to renew should compel consideration on the merits.

Late Notice of ClaimStatute of LimitationsWorld Trade Center ExposureChronic Obstructive Pulmonary DiseaseAccrual DateProcedural DefectsMotion to RenewAppellate ReviewJudicial DiscretionGeneral Municipal Law
References
25
Case No. 13-07-00277-CV
Regular Panel Decision
Jul 17, 2008

Corpus Christi Housing Authority v. Maria Lara

The Corpus Christi Housing Authority appealed the dismissal of its forcible detainer action against tenant Maria Lara. The housing authority terminated Lara's lease due to alleged criminal activity. The trial court dismissed the action, ruling that the housing authority's notice of lease termination was defective as it failed to specify the judicial eviction procedure and the type of criminal activity, as mandated by federal regulations, and that this defect deprived the court of subject-matter jurisdiction. The appellate court reversed the dismissal, finding that while the notice was indeed deficient, such defects are not jurisdictional and should lead to abatement of the action to allow the housing authority to cure the notice, rather than outright dismissal. The case was remanded for further proceedings consistent with this ruling.

Forcible DetainerLease TerminationHousing AuthorityFederal RegulationsDue ProcessNotice RequirementsJurisdictionAbatementReversalRemand
References
17
Case No. MISSING
Regular Panel Decision

Amabile v. City of Buffalo

Estelle Amabile fell and was injured due to a defective sidewalk in the City of Buffalo, caused by a protruding stop-sign post and cracked concrete. She and her husband sued the City, which moved for summary judgment citing a lack of prior written notice as required by the City Charter. Plaintiffs argued for a "constructive notice" exception, but the Appellate Division reversed the lower court's denial, granting summary judgment to the City. This Court affirmed the Appellate Division's decision, ruling that constructive notice cannot satisfy the statutory requirement of prior written notice for sidewalk defects, thus upholding legislative intent to protect municipalities from liability without actual written notice.

Municipal liabilitySidewalk defectPrior written noticeConstructive noticeSummary judgmentStatutory interpretationAppellate reviewNegligencePersonal injuryBuffalo City Charter
References
13
Case No. MISSING
Regular Panel Decision

Corpus Christi Housing Authority v. Lara

The Corpus Christi Housing Authority appealed the dismissal of its forcible detainer action against tenant Maria Lara. Lara's lease was terminated due to alleged criminal activity, and the housing authority obtained an eviction judgment from a justice court. The county court, however, dismissed the case, finding the housing authority's termination notice defective under federal regulations. On appeal, the housing authority contended the notice was adequate or that Lara had actual knowledge of the lease termination. The appellate court determined that while the notice was indeed defective, such deficiencies were not jurisdictional and the trial court erred by dismissing the action rather than abating it for proper notice. The case was reversed and remanded with instructions to abate the underlying action until sufficient notice is provided.

Forcible DetainerLease TerminationPublic Housing AuthorityFederal RegulationsDue ProcessNotice RequirementsSubject-Matter JurisdictionAppellate ReviewReversal and RemandAbatement
References
28
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