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

Case No. 2020 NY Slip Op 05974 [187 AD3d 1099]
Regular Panel Decision
Oct 21, 2020

Zukowski v. Powell Cove Estates Home Owners Assn., Inc.

This personal injury action concerns Vincent Zukowski, who allegedly slipped and fell on ice at a construction site, claiming common-law negligence and Labor Law violations. The defendants, AVR-Powell C. Development Corp. and Powell Cove Associates, LLC, along with third-party defendant A-One Landscape Management, Inc., appealed the denial of their summary judgment motions. The Appellate Division modified the Supreme Court's order by granting A-One's motion regarding contractual indemnification and failure to procure insurance, and dismissing Jaman Development, LLC's cross-claim for contribution against A-One. The court affirmed the denial of summary judgment for the defendants, citing triable issues of fact regarding their negligence and notice of the dangerous condition under Labor Law § 200 and 12 NYCRR 23-1.7 (d).

Personal InjuryCommon-Law NegligenceLabor Law Section 200Labor Law Section 241(6)Slipping HazardsSummary JudgmentContractual IndemnificationFailure to Procure InsuranceThird-Party ActionConstruction Site Accident
References
14
Case No. MISSING
Regular Panel Decision

Claim of Manka v. Goodyear Tire & Rubber Co.

David Manka, an employee, died from ureteral cancer in 2008 after being diagnosed in 2007. His widow, the claimant, sought workers' compensation death benefits, asserting that his cancer was causally linked to his occupational exposure to ortho-toluidine. The employer disputed this, arguing no established link between ortho-toluidine and ureteral cancer existed, only bladder cancer. Both the Workers’ Compensation Law Judge and the Board credited the claimant's expert, who linked ortho-toluidine to ureteral cancer due to similar cell types and the rarity of direct studies. The Appellate Division affirmed the Board's decision, finding substantial evidence to support the determination that decedent's death was due to an occupational disease.

Occupational DiseaseUreteral CancerOrtho-toluidine ExposureCausal RelationshipWorkers' Compensation BenefitsExpert Medical OpinionSubstantial EvidenceAppellate ReviewCredibility Assessment
References
7
Case No. ADJ9693769
Regular
Sep 26, 2022

AUGUSTO GARCIA vs. SIERRA TRAFFIC SERVICE, STATE COMPENSATION INSURANCE FUND

The Appeals Board reconsidered a decision and affirmed findings that the applicant sustained a heat stroke injury but not orthopedic injuries. The Board rescinded the award of temporary disability benefits, finding no substantial medical evidence supported disability resulting from the industrial injury. Consequently, the Employment Development Department is not entitled to reimbursement, and the lien of Spine and Ortho Center is disallowed.

Workers' Compensation Appeals BoardReconsiderationTemporary DisabilitySubstantial Medical EvidenceOrthopedic InjuryHeat StrokeDehydrationExhaustionSleep DisorderEmployment Development Department
References
4
Case No. MNKOI 0000714498
Regular
Jul 03, 2018

SALVADOR MOTA vs. BOSKOVICH FARMS, CALIFORNIA INSURANCE GUARANTEE ASSOCIATION

The Workers' Compensation Appeals Board denied CIGA's petition for reconsideration regarding a lien claim. CIGA argued the lien was barred by Insurance Code section 1063.1(c)(9) because the claimant, VQ Ortho/Vision Quest Industries, Inc. (VQ), was an assignee. However, the Board found VQ was the original claimant who had temporarily assigned and then reassigned the claim back to itself. This allowed VQ to assert the lien as the original provider of services, consistent with the legislative intent of CIGA to protect original claimants.

CIGACovered ClaimInsurance Code 1063.1(c)(9)AssigneeOriginal ClaimantLien ClaimReconsiderationWCABWCJVQ Ortho/Vision Quest Industries
References
3
Case No. MISSING
Regular Panel Decision
Apr 22, 2009

Shaw v. RPA Associates, LLC

Frederic E Shaw, an employee of Rockbusters, sustained injuries at a construction site when a dump truck he was operating capsized. He and his wife commenced an action seeking damages for personal injuries, alleging common-law negligence and violations of Labor Law §§ 200, 240 (1), and 241 (6) against RPA Associates, LLC, AVR Realty, and Patriot Ridge Development, LLC. Patriot Ridge, the owner and developer, also brought a third-party action against Rockbusters for indemnification. The Supreme Court granted summary judgment, dismissing both the complaint and the third-party complaint. On appeal, the court dismissed portions of the appeal and cross-appeal, finding the parties were not aggrieved, and affirmed the judgment insofar as reviewed, thereby upholding the dismissal of the claims.

Personal InjuryConstruction AccidentDump Truck AccidentSummary JudgmentLabor Law ViolationsCommon-Law NegligenceThird-Party ActionIndemnification ClaimAppellate ReviewPremises Liability
References
18
Case No. MISSING
Regular Panel Decision
Jan 24, 1994

Kowalski v. Goodyear Tire and Rubber Co.

Plaintiffs Dorothy J. and Louis Kowalski, Jr. sued Goodyear Tire & Rubber Company for negligence and strict liability, alleging Mrs. Kowalski contracted bladder cancer from ortho-toluidine exposure via her husband's work clothes from Goodyear's Niagara Falls plant. Goodyear sought summary judgment, arguing the claim was time-barred, the strict liability claim was undefined, and no duty was owed to Mrs. Kowalski. The court denied Goodyear's motions, ruling that the federally required commencement date under CERCLA preempted the state statute of limitations. The court also found that plaintiffs adequately alleged Goodyear owed a duty of care due to the foreseeable harm from secondary exposure to a known dangerous substance, and that the strict liability claim required further evidence.

negligencestrict liabilitystatute of limitationsCERCLASARAhazardous substancestoxic exposurebladder canceroccupational diseasesecondary exposure
References
19
Case No. MISSING
Regular Panel Decision
Jan 25, 1990

Sikes v. Chevron Companies

Gary Sikes, a former termite exterminator for T & R Pest Control, and his wife, initiated a negligence and strict products liability action against T & R, its president Anthony Ferrandino, and Chevron entities. Sikes claimed he suffered personal injuries due to prolonged exposure to chlordane, a pesticide allegedly manufactured by Chevron Chemical Company-Ortho Division. Both Chevron defendants and T & R/Ferrandino moved for summary judgment. The Chevron defendants argued they did not manufacture the specific chlordane used by Sikes, while T & R/Ferrandino contended Sikes was an employee, limiting his claims to workers' compensation. The Supreme Court initially denied these motions. However, the appellate court reversed the decision, granting summary judgment to all defendants, concluding that Sikes failed to provide sufficient evidence linking his exposure to Chevron's product and that his exclusive remedy against T & R and Ferrandino was indeed workers' compensation.

Personal InjuryProduct LiabilityNegligenceSummary JudgmentWorkers' CompensationEmployer-Employee RelationshipChlordane ExposurePesticideToxic TortAppellate Review
References
8
Case No. MISSING
Regular Panel Decision

Kline v. EI DuPont De Nemours & Co., Inc.

Plaintiffs Ray W. Kline and Dorothy M. Kline filed a diversity action against several chemical companies, including E.I. DuPont De Nemours & Co., alleging injuries from Mr. Kline's exposure to ortho-toluidine during his employment with The Goodyear Tire & Rubber Company. The defendant chemical companies then filed a third-party complaint against Goodyear seeking contribution and indemnification. Magistrate Judge Leslie G. Foschio recommended granting Goodyear's motion for judgment on the pleadings or summary judgment, concluding that the 1996 Omnibus Workers' Compensation Reform Act, which restricts employer liability for third-party claims, applies to this case as the lawsuit was filed after the Act's effective date, even though the exposure occurred prior. District Judge Arcara adopted the Magistrate Judge's findings, agreeing that the Act's amendments apply to actions filed after its effective date, irrespective of the injury's occurrence date, citing persuasive dicta from the New York Court of Appeals in Majewski. Consequently, Goodyear's motion was granted.

Workers' Compensation LawThird-Party ClaimsEmployer LiabilityStatutory RetroactivityNew York State LawFederal Diversity JurisdictionSummary JudgmentJudgment on the PleadingsToxic TortOrtho-toluidine Exposure
References
33
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