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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. 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. 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

Hutchinson v. Sheridan Hill House Corp.

Justice Saxe dissents from the majority's decision to dismiss the complaint, arguing that the defendant's motion for summary judgment should be denied. The dissent contends that the sidewalk defect, a quarter-inch protruding metal object, is not trivial and presents an actionable tripping hazard, citing precedents that reject a minimal dimension test for defects. Furthermore, the dissent asserts that the defendant's claim of lack of notice is insufficient to establish an absence of constructive notice, especially given that the defect was present since a new sidewalk installation over two years prior to the accident. Justice Saxe distinguishes the current case from prior trivial defect cases, emphasizing that the defect here constitutes a potential trap or snare, thus raising a question of fact for a jury.

Sidewalk DefectTrivial Defect DoctrineSummary JudgmentConstructive NoticeTripping HazardPremises LiabilityPersonal InjuryDuty to Maintain PropertyIndependent Contractor LiabilityAppellate Division
References
9
Case No. MISSING
Regular Panel Decision

Berner v. Town of Huntington

The court addressed the defendant's motion to reargue a previously denied summary judgment motion. The original denial stemmed from the court's finding that an exception to the prior written notice requirement for municipalities applied, as the defendant, Town of Huntington, had actual knowledge of a defective curb, had inspected it, and had slated it for repair. The defendant contended that recent Court of Appeals precedent, particularly Amabile v City of Buffalo, abrogated this 'actual notice and inspection' exception. However, the court distinguished Amabile by noting it concerned constructive notice and reaffirmed the vitality of the narrow exception for actual notice coupled with inspection. The court emphasized that the policy behind written notice laws is not to shield municipalities from liability for known and unaddressed defects, especially when a property owner has vigilantly reported the issue. Consequently, the court granted reargument but upheld its initial decision, allowing the plaintiff's claim to proceed.

Prior Written NoticeMunicipal LiabilityActual Notice ExceptionSummary JudgmentReargument MotionCurb DefectHighway LawTown LawGeneral Municipal LawSpecial Duty
References
25
Case No. MISSING
Regular Panel Decision
Oct 14, 2009

Ventura v. Ozone Park Holding Corp.

The Supreme Court order, which granted summary judgment to defendants 3 Kings Collision, Inc., Reliable Auto Center, Inc., and the Ozone defendants, and denied plaintiff's cross-motion, was unanimously affirmed. Claims against Reliable Auto Center, Inc. were barred by Workers' Compensation Law § 11, as it was found to be the plaintiff's employer. The court determined that the plaintiff's work, removing a garage door motor, constituted routine maintenance and was not a protected activity under Labor Law § 240(1). Furthermore, common-law negligence and Labor Law § 200 claims against the Ozone defendants were dismissed due to lack of evidence of supervision, control, or notice of defects. 3 Kings Collision, Inc. was also granted summary judgment on the common-law negligence claim as there was no evidence of notice of a ladder defect, and as a gratuitous bailor, it had no duty to warn of a readily discernible defect. The court also providently exercised its discretion in refusing to strike 3 Kings's answer.

Summary judgmentLabor Law § 240(1)Labor Law § 200Workers' Compensation Law § 11Common-law negligenceRoutine maintenanceGratuitous bailorDuty to warnAppellate reviewMotion to strike answer
References
13
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