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

Case No. 2016-07-0351
Regular Panel Decision
Oct 12, 2016

Crumble, Mae v. Express Employment Services

Mae Crumble appealed a trial court's decision entitling her to a panel of orthopedic specialists after her employer, Express Employment Services, denied her claim based on an occupational medicine practitioner's opinion. The employer initially provided a panel including walk-in facilities and an occupational medicine practitioner, from which Crumble selected WorkCare, leading to an examination by Dr. Conrado Sioson. Dr. Sioson opined the injury was not work-related, leading the employer to deny the claim, but the trial court subsequently ordered an orthopedic panel, expressing doubts about the validity of the initial panel and Dr. Sioson's selection. The Appeals Board found the trial court did not definitively resolve key issues, such as whether a valid medical panel was provided or if Dr. Sioson was a properly selected treating physician whose causation opinion should be presumed correct and, if so, whether that presumption was rebutted. Consequently, the Appeals Board vacated the trial court's decision and remanded the case for a determination of these unresolved issues.

Workers' Compensation AppealInterlocutory AppealMedical CausationPanel of PhysiciansTreating Physician PresumptionEmployer Designated PanelNotice of InjuryVacated and RemandedExpedited HearingOrthopedic Specialists
References
4
Case No. MISSING
Regular Panel Decision
May 14, 2014

Forest Rehabilitation Medicine PC v. Allstate Insurance

Plaintiff Forest Rehabilitation Medicine PC sued defendant Allstate to recover $3,490 for no-fault medical benefits provided to assignor Tracy Fertitta. The core issue was the medical necessity of "Calmare pain therapy" (scrambler therapy), a novel treatment. The court conducted a bench trial, hearing expert testimony from both sides. Dr. Ayman Hadhoud, for the defense, argued the treatment was not medically necessary, not cost-effective, and essentially a form of physical therapy. Dr. Jack D’Angelo, for the plaintiff, countered that the therapy, though new, had FDA approval, was used by the military, and reduced the assignor's pain levels. Applying the Frye standard, the court found the evidence regarding Calmare scrambler therapy reliable and ruled it was medically necessary for Ms. Fertitta's pain management. Consequently, judgment was awarded to the plaintiff, Forest Rehabilitation Medicine PC, for $3,490 plus attorney's fees and interest.

No-Fault InsuranceMedical NecessityCalmare Pain TherapyScrambler TherapyNovel TreatmentFrye StandardExpert TestimonyPain ManagementFDA ApprovalCervical Radiculopathy
References
14
Case No. 2024 NY Slip Op 00599 [224 AD3d 428]
Regular Panel Decision
Feb 06, 2024

Matter of New Millennium Pain & Spine Medicine, P.C. v. Garrison Prop. & Cas. Ins. Co.

This case involves two appeals by New Millennium Pain & Spine Medicine, P.C. against Garrison Property & Casualty Insurance Company and GEICO Casualty Company. New Millennium sought to vacate master arbitration awards that denied its claims for no-fault benefits for medical services. The Supreme Court denied these applications. The Appellate Division, First Department, affirmed the Supreme Court's decisions, stating that an arbitrator's award will not be set aside unless it is irrational. The court also addressed the argument regarding a 20% wage offset in no-fault benefits, finding it unavailing under Insurance Law § 5102 (b). Ultimately, New Millennium was not entitled to attorneys' fees as it was not the prevailing party.

No-fault benefitsarbitration awardvacaturinsurance lawwage offsetappellate reviewmedical servicesno-fault policy exhaustionattorneys' feesCPLR Article 75
References
8
Case No. 533303
Regular Panel Decision
Jan 13, 2022

Matter of Molina v. Delta Airlines Inc.

Leyda Molina, a flight attendant, sought workers' compensation benefits for respiratory issues developed after wearing her employer-provided uniform. An occupational medicine specialist, John Meyer, determined her symptoms were a causally-related allergic response to the uniform. Although a Workers' Compensation Law Judge initially disallowed the claim, the Workers' Compensation Board reversed, establishing the claim for occupational disease and setting June 10, 2019, as the date of disablement. The employer and its carrier appealed. The Appellate Division, Third Department, affirmed the Board's decision, finding it supported by substantial evidence and noting the Board's authority to resolve conflicting medical opinions.

Occupational DiseaseWorkers' CompensationFlight AttendantRespiratory ProblemsWork Uniform AllergyCausationMedical OpinionSubstantial EvidenceAppellate ReviewDate of Disablement
References
8
Case No. 533303
Regular Panel Decision
Jan 13, 2022

In the Matter of the Claim of Leyda Molina

Claimant, a flight attendant, developed respiratory problems shortly after beginning to wear a new employer-provided uniform in July 2018. Her symptoms, including cough and shortness of breath, progressively worsened. After consulting Dr. John Meyer, an occupational medicine specialist, she was diagnosed with an allergic response to the uniform and her symptoms improved upon discontinuing its use. While a Workers' Compensation Law Judge initially disallowed her claim based on opposing medical opinions, the Workers' Compensation Board reversed, crediting Dr. Meyer's findings and establishing the claim for occupational disease with a disablement date of June 10, 2019. The Appellate Division affirmed the Board's decision, finding it supported by substantial evidence.

Occupational DiseaseFlight AttendantRespiratory ProblemsAllergic ResponseWork UniformCausally-RelatedWorkers' Compensation BoardMedical OpinionSubstantial EvidenceAppellate Review
References
8
Case No. MISSING
Regular Panel Decision

Stromski v. Jefferson Auto Body

The claimant, an auto body repairer for 27 years, sought workers' compensation benefits for stomach cancer, attributing it to occupational exposure to chromium and talc. The Workers’ Compensation Board denied his claim, concluding that his disease was not causally related to his occupation after resolving conflicting expert medical testimony against him. The Board credited the carrier's expert, an internal medicine specialist, who testified that studies only link a specific type of chromium to carcinogenicity in the upper respiratory tract, not stomach cancer. This expert testimony successfully rebutted the statutory presumption of compensability under Workers’ Compensation Law § 21. The appellate court affirmed the Board's decision, emphasizing that resolving conflicts in medical testimony, particularly regarding causation, falls within the Board's province. Additionally, the claimant's appeal from the denial of reconsideration was deemed abandoned.

Occupational DiseaseStomach CancerCausationMedical Expert TestimonyChromium ExposureTalc ExposureBurden of ProofStatutory PresumptionAppellate ReviewBoard Decision Affirmed
References
4
Case No. 2020 NY Slip Op 04896 [186 AD3d 1770]
Regular Panel Decision
Sep 03, 2020

Matter of Wen Liu v. Division of Gen. Internal Medicine, Mount Sinai Sch. of Medicine

Wen Liu, a data programming analyst, filed for workers' compensation benefits in May 2010, claiming a neck injury from a June 5, 2008 fall at work due to dizziness. The employer failed to timely file a notice of controversy, but a Workers' Compensation Law Judge (WCLJ) disallowed the claim, finding no causal connection between the injuries and employment. The Workers' Compensation Board upheld this decision, which the claimant appealed. The Appellate Division affirmed the Board's decision, emphasizing that the employer's procedural failure did not absolve the claimant of proving a causal relationship. Substantial evidence supported the Board's rejection of the claimant's medical proof, as emergency room records contradicted her later descriptions of the incident and indicated pre-existing conditions.

Workers' CompensationCausationMedical EvidenceTimely NoticeBurden of ProofInjuryFallDizzinessNeck InjuryCarpal Tunnel Syndrome
References
7
Case No. 2017 NY Slip Op 06635
Regular Panel Decision
Sep 26, 2017

Hamburg v. New York University School of Medicine

Plaintiff, Carole Hamburg, M.D., sued New York University School of Medicine for age discrimination under the New York City Human Rights Law and for breach of contract after her employment was not renewed. The Supreme Court granted NYU summary judgment on the age discrimination claim but denied it for the breach of contract claim. On appeal, the Appellate Division, First Department, affirmed the dismissal of the age discrimination claim, finding no evidence of discriminatory intent in NYU's restructuring and phase-out of the general radiology section. The court further modified the lower court's decision, granting summary judgment to NYU on the breach of contract claim, ruling that Dr. Hamburg was not contractually entitled to a year's notice of non-renewal as her non-tenure-eligible position automatically terminated unless renewed. Consequently, the entire complaint was dismissed.

Age DiscriminationEmployment ContractFaculty EmploymentUniversity AdministrationDepartment RestructuringSummary JudgmentAppellate ReviewContract InterpretationTenure-EligibleNon-Tenure Track
References
19
Case No. 01-04-00797-CV
Regular Panel Decision
Jul 20, 2006

Marine Transport Corporation v. the Methodist Hospital, the Institute for Preventive Medicine/Methodist Healthcare Systems, the Methodist Hospital/Institute for Preventive Medicine Management, Inc. and Rashid Khan, M.D.

Marine Transport Corporation (Marine) appealed the dismissal of its claims against The Methodist Hospital and Dr. Rashid Khan. Marine's employee, Richard Guillory, a seaman, was certified fit for duty by the appellees despite medical issues and later died from an infection. Marine sought damages under the maritime doctrine of maintenance and cure, alleging negligence in the fitness-for-duty certification. The appellate court affirmed that while federal maritime law applied to Marine's claim, the underlying health care liability claims were governed by state law's former article 4590i, requiring expert reports. However, the trial court abused its discretion by denying Marine's motion for a 30-day extension to file these reports, as the attorney's failure was due to accident or mistake, not conscious indifference. Therefore, the judgment of dismissal was reversed, and the case was remanded for further proceedings.

Maritime LawMaintenance and CureHealth Care LiabilityMedical NegligenceExpert Report RequirementTexas Civil Practice and Remedies CodeAbuse of DiscretionAccident or MistakeSeaman InjuryFitness for Duty Certification
References
41
Case No. MISSING
Regular Panel Decision

Davis v. Medical Evaluation Specialists, Inc.

Justice Wilson dissents from the majority's decision on a motion for rehearing, arguing that the majority improperly considered non-evidence and engaged in speculation. The dissent contends that Lennie Davis's controverting affidavit by Dr. Bergeron, which stated a 17% impairment rating compared to the defendants' 0%, was conclusory and insufficient to establish bad faith by Medical Evaluation Specialists, Inc., Dr. DeFrancesco, and Dr. Dozier. Justice Wilson believes that the affidavit failed to meet the objective 'no reasonable doctor' standard for controverting good faith, and therefore, the trial court's summary judgment in favor of the defendants should have been affirmed based on official immunity.

Summary JudgmentOfficial ImmunityGood FaithImpairment RatingMedical AffidavitConclusory StatementsTexas Workers' Compensation ActAppellate ReviewDissenting OpinionPermanent Disability
References
7
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