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

Case No. ADJ11844639
Regular
Apr 08, 2019

REINA HERNANDEZ vs. MERCHANTS BUILDING MAINTENANCE, LLC

The Workers' Compensation Appeals Board (WCAB) vacated its prior grant of reconsideration and dismissed the applicant's petition. The WCAB found that the applicant's petition for reconsideration was untimely, as it was filed after the jurisdictional deadline. The arbitrator's decision was issued on October 15, 2018, making the filing deadline November 9, 2018. Since the petition was filed on November 14, 2018, it was dismissed as untimely.

Petition for reconsiderationuntimelyjurisdictionalvacatedismissLabor CodeCal. Code Regs.arbitratorservicemail
References
4
Case No. 530397
Regular Panel Decision
Dec 17, 2020

Matter of Czachurski v. Pal Envtl.

The claimant, Zbigniew Czachurski, an asbestos worker, filed a claim for workers' compensation benefits in October 2018, alleging binaural hearing loss due to prolonged noise exposure at work. Otolaryngologist Michael Alleva diagnosed him in September 2018. The employer, Pal Environmental, and its carrier controverted the claim as untimely under Workers' Compensation Law §§ 28 and 49-bb. A Workers' Compensation Law Judge initially disallowed the claim. The Workers' Compensation Board modified this, determining the date of disablement was March 3, 2013, and the claimant knew of work-related hearing loss by October 23, 2015 (later clarified as March 23, 2015, based on otolaryngologist Robert Lerch's diagnosis). Consequently, the Board ruled the claim, filed in October 2018, was untimely. The Appellate Division, Third Department, affirmed the Board's decision, finding substantial evidence that the claimant knew of his hearing loss and its probable cause in 2015.

Occupational DiseaseHearing LossWorkers' CompensationTimeliness of ClaimStatute of LimitationsDate of DisablementKnowledge of DiseaseMedical DiagnosisNoise ExposureAppellate Review
References
9
Case No. 536034 CV-22-2074
Regular Panel Decision
Dec 14, 2023

In the Matter of the Claim of Hillary Newman

Claimant Hillary Newman established a workers' compensation claim for injuries sustained in 2016. In 2017, she suffered an intervening accident which she failed to disclose in an independent medical examination (IME) questionnaire in April 2018, despite reporting it to her treating physician who documented it in an October 2017 report. The Workers' Compensation Law Judge (WCLJ) and the Board found a violation of Workers' Compensation Law § 114-a for knowingly making a false statement and imposed a mandatory penalty. The Board's initial decision was affirmed, but an amended decision later rescinded the discretionary penalty. The Supreme Court, Appellate Division, Third Judicial Department, modified the duration of the mandatory penalty, ruling it should extend only until June 11, 2018, when the treating physician's report disclosing the intervening accident was filed with the Board, rather than until April 9, 2021.

Workers' CompensationFraudMisrepresentation of FactIntervening AccidentIME QuestionnaireMandatory PenaltyDiscretionary PenaltyMedical Report FilingCredibility IssueSubstantial Evidence
References
14
Case No. MISSING
Regular Panel Decision

Sheahan v. Brady

Plaintiff Danielle Sheahan, a white woman, was terminated from her position at the Internal Revenue Service (IRS) in April 1992, after being hired in May 1991. The defendant, the Secretary of the Treasury, claimed she was fired for submitting an altered college transcript. However, the plaintiff alleged racial and color discrimination, asserting that her mostly Black co-workers and supervisors conspired against her, fabricating the transcript alteration accusation. Sheahan pursued administrative remedies, first with the Merit Systems Protection Board (MSPB), which dismissed her complaint for lack of jurisdiction on October 16, 1992. Subsequently, she filed a charge with the Equal Employment Opportunity Commission (EEOC), which also dismissed her case on October 22, 1992, based on the erroneous belief that an MSPB appeal was still pending. Plaintiff then filed a civil suit in federal court on November 12, 1992. Critically, on November 9, 1992, the Treasury Department had filed a Request to Reopen the EEOC's October 22 decision. The court examined the requirements of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-16, specifically concerning the exhaustion of administrative remedies and the finality of EEOC actions. Under 29 C.F.R. § 1613.234, a timely request to reopen by either party renders an EEOC decision non-final for the purpose of initiating a civil action. Consequently, the defendant's request to reopen on November 9, 1992, made the EEOC's October 22 decision non-final before Sheahan filed her lawsuit on November 12, 1992. Therefore, the court concluded it lacked subject matter jurisdiction. The court granted the defendant's motion, dismissing the plaintiff's complaint without prejudice, and suggested that either party could renew a request to reopen the EEOC decision, anticipating it would be granted given the EEOC's original erroneous finding.

Federal employment discriminationTitle VIICivil Rights ActRacial discriminationColor discriminationWrongful terminationAdministrative exhaustionEEOC decision finalitySubject matter jurisdictionMotion to dismiss
References
11
Case No. MISSING
Regular Panel Decision

District Council No. 9 v. APC Painting, Inc.

Plaintiff District Council No. 9 (the Union) initiated this action under the Labor Management Relations Act to enforce several arbitration awards against APC Painting, Inc., its related APC and Apollo entities, and individual Gregory Fucci. The Union sought to confirm awards from the Joint Trade Committee (JTC) regarding violations of a collective bargaining agreement, including underpayment of wages and employment of non-union workers. Defendants moved to dismiss claims against Fucci and the Apollo entities, arguing non-participation in arbitration and denial of alter ego liability. Magistrate Judge Gorenstein denied the defendants' motion, allowing the alter ego theory to be pursued, and granted the Union's motion for partial summary judgment. The court confirmed the arbitration awards against the APC entities, affirming the limited judicial review of such awards and rejecting defendants' objections.

Labor LawArbitration AwardCollective Bargaining AgreementLMRA Section 301Alter Ego DoctrineCorporate Veil PiercingSummary JudgmentMotion to DismissWage ViolationsFringe Benefits
References
85
Case No. 2016-334 S C
Regular Panel Decision
Apr 27, 2017

2 & 9 Acupuncture, P.C. v. 21st Century Advantage Ins. Co.

This case concerns an appeal by 2 & 9 Acupuncture, P.C. from an amended order that granted summary judgment to 21st Century Advantage Insurance Company, dismissing a complaint to recover assigned first-party no-fault benefits. The defendant argued it had paid the plaintiff in accordance with the workers' compensation fee schedule. The Appellate Term, Second Department, reversed the lower court's decision, finding that the defendant failed to prima facie demonstrate proper denial of payment for services billed under CPT codes 97026 and 97016. Consequently, the defendant's motion for summary judgment regarding these specific CPT codes was denied.

No-Fault BenefitsSummary JudgmentCPT CodesWorkers' CompensationAppellate ReviewInsurance LawMedical BillingAcupunctureSuffolk CountyPayment Dispute
References
3
Case No. ADJ9427877
Regular
Apr 20, 2020

KARL KURTZ vs. WESCO AIRCRAFT HARDWARE, LIBERTY MUTUAL INSURANCE COMPANY

This case concerns an employer's termination of an employee while he was on temporary disability due to a back injury. The Workers' Compensation Appeals Board affirmed the finding that the termination violated Labor Code section 132a, finding the employer's stated reasons of relocation and claim denial constituted unlawful discrimination. While the employee is entitled to lost wage reimbursement from June 1, 2016, to October 9, 2018, issues regarding reinstatement and further wage loss remain deferred for further proceedings. The Board also affirmed the finding that the employee's injury was not due to his own serious and willful misconduct.

Labor Code Section 132aserious and willful misconductdiscriminationretaliationreinstatementlost wagestemporary disabilitypermanent disabilityserious and willful misconduct of employeeserious and willful misconduct of employer
References
18
Case No. ADJ11184438
Regular
Oct 02, 2019

Ricardo Villanueva vs. Golden Labor Services, LLC, Security National Insurance Company

The applicant sought reconsideration of a WCJ's denial of temporary disability benefits from February 1, 2018, to January 9, 2019, for a left shoulder injury. The Appeals Board granted reconsideration, affirming denial of benefits from June 5, 2018, due to refusal of modified work but deferring the issue of benefits from February 1, 2018, to June 4, 2018. This deferral is due to the WCJ's inability to locate critical medical reports, which appear to have been physically filed but not properly scanned into the electronic system through no fault of the applicant. Further proceedings are required to properly rescan and consider these exhibits.

Petition for ReconsiderationTemporary Disability IndemnityModified WorkLabor Code Section 4658.1Electronic Adjudication FileTreating Physician ReportsAmended Petition for PenaltiesSeparate Time-StampDocument Separator SheetScanned Exhibits
References
2
Case No. ADJ8332660
Regular
Feb 28, 2019

CELEDONIO RAMIREZ vs. MANO PALLETS, INC.; IMPERIUM, adjusted by ATHENS

The Workers' Compensation Appeals Board (WCAB) dismissed a Petition for Removal filed by the defendant. The petition was dismissed because it was untimely, as it was filed on December 3, 2018, beyond the November 13, 2018 deadline for seeking removal of the WCJ's October 19, 2018 Findings and Order. The WCAB emphasized that filing with the Board, not just mailing, is required to meet the deadline. Furthermore, even if timely, the petition would likely have been denied due to a lack of demonstrated prejudice.

Petition for RemovalUntimely FilingDismissalWCABWorkers' Compensation Administrative Law Judge (WCJ)Findings and OrderService by MailTime ExtensionProof of FilingSubstantial Prejudice
References
0
Case No. MISSING
Regular Panel Decision

Dimitropoulos v. Painters Union District Council 9

The plaintiff, Peter Dimitropoulos, sued District Council 9 of the International Brotherhood of Painters and Allied Trades ("DC-9") for age discrimination under the ADEA. He alleged the union improperly handled his grievance, failed to refer him to jobs, and wrongfully expelled him. The court found no evidence that the union's handling of his grievance or his expulsion after a fight were motivated by age. Crucially, regarding job referrals, the plaintiff admitted he failed to sign the required "out-of-work book," providing a legitimate, non-discriminatory reason for not receiving referrals. As the plaintiff failed to present a genuine issue of material fact showing intentional age discrimination, the court granted the defendant's motion for summary judgment, thereby dismissing the ADEA claim.

Age DiscriminationEmployment LawLabor Union LiabilitySummary Judgment MotionFederal Court CaseADEA ClaimJob Referral DiscriminationUnion Grievance ProcessMember ExpulsionDisparate Treatment
References
13
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