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

Case No. 04-09-00148-CV
Regular Panel Decision
Dec 09, 2009

Central Texas Orthopedic Products, Inc. v. Andrew Espinoza and Howmedica Osteronics Corp. D/B/A Stryker Orthopedics

Central Texas Orthopedic Products, Inc. (CTOP) sued Andrew Espinoza for breach of contract and fiduciary duty, and Howmedica Osteonics Corp. d/b/a Stryker Orthopedics (Stryker) for tortious interference. The trial court granted partial summary judgment for Espinoza and Stryker, and a jury found Espinoza breached fiduciary duty but awarded no damages. On appeal, CTOP challenged the summary judgments and attorney's fees awarded to Espinoza. The appellate court found the trial court erred in applying the unclean hands doctrine to CTOP's claims as the alleged misconduct was separate from the disputed contract. The court also found a genuine issue of material fact regarding Espinoza's entitlement to compensation due to his alleged breach of fiduciary duty. Therefore, the appellate court reversed the trial court's judgment and remanded the case for further proceedings.

Breach of ContractBreach of Fiduciary DutyTortious InterferenceSummary JudgmentUnclean Hands DoctrineNon-Compete AgreementCompensation AgreementTexas Payday ActAppellate ReviewReversed and Remanded
References
15
Case No. 01-42217-REG
Regular Panel Decision

Ames Department Stores, Inc. v. Lumbermens Mutual Casualty Co. (In re Ames Department Stores, Inc.)

This document is a report and recommendation from Judge Robert E. Gerber concerning Ames Department Stores, Inc.'s motion to confirm exclusive jurisdiction in an adversary proceeding against Lumbermens Mutual Casualty Company. The proceeding, occurring under Ames' Chapter 11 bankruptcy, addresses the ownership of an $8 million trust account and alleged interference with the debtor's property. Judge Gerber recommends that the court possesses subject matter jurisdiction over all claims, asserting exclusive jurisdiction over specific claims involving automatic stay violations, marshaling, and equitable subordination. Furthermore, he advises that the McCarran-Ferguson Act does not mandate deferral to an Illinois state court for these issues, and the First Assuming Jurisdiction Doctrine is applicable to certain in rem claims.

Bankruptcy LawJurisdictional DisputeExclusive JurisdictionAutomatic Stay ViolationMcCarran-Ferguson ActIn Rem JurisdictionAdversary ProceedingChapter 11 BankruptcySurety BondsCash Collateral
References
65
Case No. MISSING
Regular Panel Decision

Ames v. Norstar Building Corp.

This dissenting opinion concerns the Labor Law § 240 (1) claim brought by plaintiff Leigh Ames, a construction worker who suffered injuries from a fall at an elevated work site. Justices Gorski and Lawton argue against the majority's decision to grant defendants' motion for summary judgment, asserting that defendants failed to demonstrate a prima facie showing for dismissal. The dissent contends that Ames's accident, involving a fall while attempting to access an elevated work area, falls under the protections of Labor Law § 240 (1), challenging the majority's conclusion that a doorway threshold is not an elevated work site. Citing numerous precedents, the dissenting justices maintain that the lack of appropriate safety devices for elevated access constitutes a violation of the Labor Law. Therefore, they advocate for denying summary judgment to the defendants and modifying the existing order.

Construction accidentElevated work siteSummary judgmentLabor Law violationDissenting opinionLadder safetyAccess to work sitePrima facie caseWorker protectionPersonal injury
References
15
Case No. MISSING
Regular Panel Decision

Ames v. Group Health Inc.

Plaintiffs, including trustees John Ames and Michael Pantony of the United Welfare Fund-Welfare Division (UWF) and participant Fred Tremarcke, sued Group Health Incorporated (GHI) under ERISA and HIPAA. They alleged GHI illegally discriminated against Tremarcke by denying his health coverage after he went on disability leave, arguing it violated HIPAA's anti-discrimination provisions and breached the insurance policy. Tremarcke's employer, Classic Chevrolet, continued making health contributions on his behalf, and a 'Side Letter of Understanding' with his union attempted to maintain his 'active employee' status. The court ultimately ruled in favor of GHI, finding that Tremarcke did not meet the eligibility requirements of the UWF-GHI plan, which required working over 20 hours per week, and that the 'Side Letter' could not unilaterally alter GHI's contractual obligations. Consequently, the plaintiffs' motion for partial summary judgment was denied, and the defendant's motion for partial summary judgment was granted, dismissing the second and third causes of action.

ERISAHIPAACOBRAHealth InsuranceDisability BenefitsSummary JudgmentFiduciary DutyBreach of ContractMulti-employer FundCollective Bargaining Agreement
References
6
Case No. 13-13-00552-CV
Regular Panel Decision
Feb 12, 2015

Nolana Open MRI Center, Inc. v. Guillermo R. Pechero M.D.Ruben D. Pechero M.D. Maplestar Orthopedics, P. A.

Nolana Open MRI Center, Inc. appealed a judgment rendered against it following a bench trial. The appellees, Guillermo R. Pechero, M.D., Ruben D. Pechero, M.D., and Maplestar Orthopedics, P.A., filed a motion to show authority, contending Nolana's counsel lacked the authority to bring the appeal. The underlying dispute involved the sale of Nolana's assets, patient referrals, lease agreements, and counterclaims for fraudulent inducement, conversion, and breach of contract. A key issue was a 50-50 ownership split in Nolana between Jose Castro and Agustin Garcia, where Castro had settled with defendants and granted them limited power of attorney to oppose litigation, while Garcia sought to authorize the appeal. The Court of Appeals, reviewing the trial court's findings, concluded that Nolana's counsel lacked standing due to the unresolved ownership conflict regarding the authority to initiate the appeal.

Appellate ProcedureJurisdictionMotion to Show AuthorityCorporate AuthorityShareholder DisputeLimited Power of AttorneyBreach of ContractTheft Liability ActFraudulent InducementTortious Interference
References
30
Case No. ADJ4418855
Regular
Oct 28, 2013

JOYCE JACKSON vs. COUNTY OF LOS ANGELES/DPSS

The Workers' Compensation Appeals Board denied the defendant's Petition for Reconsideration. The defendant argued that the psychiatric AME should have apportioned disability based on the orthopedic AME's 50/50 split between industrial injury and degenerative changes. The Board found no legal precedent requiring such mandatory adherence and noted the defendant's failure to depose the psychiatric AME to challenge their apportionment. Consequently, the defendant's failure to test the psychiatric AME's opinion waived their right to complain on reconsideration.

Workers' Compensation Appeals BoardPetition for ReconsiderationAgreed Medical Evaluatorapportionmentpsychiatric disabilityorthopedic disabilityburden of proofdepositionwaiverinvited error
References
7
Case No. ADJ7 170139; ADJ7176930
Regular
Mar 24, 2016

ROBERT GAONA vs. CAPITAL BUILDERS HARDWARE, SOUTHERN INSURANCE COMPANY, ENDURANCE REINSURANCE CORPORATION

The Workers' Compensation Appeals Board (WCAB) rescinded its prior grant of reconsideration and denied the defendant's petition for removal and reconsideration. The defendant sought to strike the Agreed Medical Evaluator's (AME) psychiatric report due to the applicant allegedly violating Labor Code section 4062.3 by sending a consulting physician's report to the AME without prior agreement. However, the WCAB found that the defendant waived this objection by later submitting both the consulting physician's and the AME's reports to an orthopedic AME for comment. Therefore, the WCAB affirmed the WCJ's denial of the defendant's petition to strike and request for costs and sanctions.

Workers' Compensation Appeals BoardPetition for ReconsiderationPetition for RemovalAgreed Medical Evaluator (AME)Joint Findings and OrdersLabor Code Section 4062.3Consulting PhysicianTainted OpinionPetition for Costs and SanctionsPetition to Strike
References
9
Case No. ADJ8683902
Regular
Jul 29, 2015

CHARLOTTE RICE vs. COUNTY OF FRESNO

The Workers' Compensation Appeals Board denied the employer's petition for reconsideration. The Board adopted the Workers' Compensation Judge's (WCJ) report, which found the agreed medical evaluator's (AME) opinion persuasive. The WCJ correctly determined that the AME appropriately applied the Almaraz-Guzman principles by considering relevant neurological factors beyond specific orthopedic chapters of the AMA Guides to assess the applicant's permanent disability. The AME's reasoning for applying a higher disability class based on chronic pain and functional limitations was found to be well-supported.

Workers' Compensation Appeals BoardPetition for ReconsiderationAgreed Medical EvaluatorAlmaraz-GuzmanPermanent DisabilityAMA GuidesCumulative TraumaCervical SpineUpper ExtremityChronic Pain
References
1
Case No. ADJ7348065; ADJ7341118
Regular
Feb 18, 2015

JOSE PRUDENCIO vs. SCC SERVICE SOLUTIONS, HARTFORD INSURANCE COMPANY OF THE MIDWEST

The Appeals Board denied the applicant's Petition for Removal, which sought to overturn an order vacating submission and developing the record. The Board agreed with the judge that further development of the medical record was needed for the internal medicine and psychiatry AMEs. However, the Board disagreed that the orthopedic AME failed to address apportionment, finding his report substantially complied with the law by noting the intertwined nature of the injuries and the difficulty in precise apportionment. The applicant's petition was denied.

Petition for RemovalOrder Vacating SubmissionOrder to Develop the RecordAgreed Medical Evaluator (AME)apportionmentcausationsubstantial evidenceReport and RecommendationLabor Code section 4663(c)Benson v. Workers' Comp. Appeals Bd.
References
1
Case No. ADJ7867551; ADJ7867528
Regular
Feb 11, 2014

MARK MAYNE vs. INTEL CORPORATION

In *Mayne v. Intel Corporation*, the Appeals Board granted Defendant Intel's Petition for Removal. The Board agreed that an Agreed Medical Evaluator (AME) agreement cannot be unilaterally cancelled by one party for an untimely report, as the WCJ had found. Consequently, the Board amended the prior order to specify that any subsequent Qualified Medical Evaluator (QME) panel, if needed, must be in orthopedic surgery, the same specialty as the original AME. The Board also noted potential issues of ex parte communication and sanctions that the WCJ may address on remand.

Petition for RemovalAgreed Medical Evaluator (AME)Qualified Medical Evaluator (QME)Panel of QMEsJoint Findings of Fact and OrdersWCJAppeals BoardSupplemental ReportEx Parte CommunicationLabor Code section 5813
References
2
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