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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. 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. ADJ4260469 (SRO 0081378)
Regular
Jul 13, 2012

JEFFREY KRESS vs. DEPARTMENT OF TRANSPORTATION, STATE OF CALIFORNIA, STATE COMPENSATION INSURANCE FUND

The Appeals Board granted reconsideration to modify a previous order regarding unreasonably delayed payments for acupuncture treatments and an orthopedic bed. The Board removed the $4,400 Labor Code section 5814.5 attorney's fee, finding it inapplicable to the State of California. They increased the penalty for unreasonable delay to 25% and awarded applicant's attorney a 10% fee on that penalty. The Board also clarified that Labor Code section 5800 interest is due on specific acupuncture visits post-stipulation and award, but not on the orthopedic bed as it lacked a specific award.

Workers' Compensation Appeals BoardReconsiderationFindings and OrderAcupunctureOrthopedic bedLabor Code section 5814.5Attorney's feePrejudgment interestSection 5800 interestStipulation and Award
References
7
Case No. ADJ1337418 (GOL 0091701) ADJ850408 (GOL 0091702)
Regular
May 26, 2009

DAWAYNE MOGENSEN vs. SANTA YNEZ RIVER WATER DISTRICT, ACWA/JOINT POWERS INSURANCE AUTHORITY

This case concerns an applicant's claim for reimbursement for an orthopedic bed following a stipulated award for future medical treatment for industrial neck and back injuries. The applicant's treating physician supported the need for the bed for pain relief and improved sleep. However, the Agreed Medical Evaluator (AME) opined that there was no evidence-based research to support the medical necessity of such a bed, which the majority decision followed. The dissenting opinion argues the AME's opinion was not substantial evidence as it was based on a legally incorrect premise that beds are never compensable, and that the treating physician's recommendation, coupled with the absence of a negative guideline, should have been sufficient.

Workers' Compensation Appeals BoardDawayne MogensenSanta Ynez River Water DistrictACWA/Joint Powers Insurance AuthorityADJ1337418ADJ850408Petition for ReconsiderationFuture Medical TreatmentOrthopedic BedDr. Richard Kahmann
References
10
Case No. ADJ9193432
Regular
Mar 06, 2017

RICARDO HERNANDEZ vs. COSMA EMTE, INC., STATE COMPENSATION INSURANCE FUND

The Appeals Board reconsidered a decision denying applicant's requests for home health care, a motorized scooter, and an orthopedic bed. While affirming the denial of the scooter and bed due to insufficient medical reasoning, the Board deferred the home health care issue. This was to allow further development of the record considering specific prescription requirements for home health care under Labor Code section 4600(h) and relevant case law, as the prior utilization review denial was untimely. The applicant was awarded further medical treatment in the form of a psychiatric consult.

Workers' Compensation Appeals BoardPetition for ReconsiderationFindings and AwardLabor Code Section 4610Utilization ReviewPrimary Treating PhysicianHome Health CareMotorized ScooterOrthopedic Bed and MattressPsychiatric Consultation
References
10
Case No. 2022 NY Slip Op 02607 [204 AD3d 1297]
Regular Panel Decision
Apr 21, 2022

Matter of Perez v. Bed, Bath & Beyond

This case concerns an appeal from an amended decision by the Workers' Compensation Board regarding a section 32 waiver agreement. Claimant Jose Perez sought to withdraw from the agreement, but the Board deemed his request untimely. However, the Board later amended its decision to allow 90 days for parties to negotiate a new agreement clarifying inconsistencies in the Medicare Set-Aside terms. The employer and its carrier appealed this amended decision. The Appellate Division, Third Department, dismissed the appeal, ruling that the Board's decision was interlocutory and not a final resolution, thus not ripe for immediate appellate review.

Workers' Compensation LawSection 32 AgreementWaiver AgreementMedicare Set-AsideMSA AnnuityInterlocutory DecisionAppeal DismissedUntimely WithdrawalBoard ReviewRecord Development
References
5
Case No. MISSING
Regular Panel Decision

Smith v. SIMMONS BEDDING COMPANY

Joe Ann Smith, a former seamstress for Simmons Bedding Company, appealed a summary judgment in her retaliatory discharge lawsuit. She was terminated after taking another job while on an approved leave of absence, following a work injury and surgery. Smith alleged Simmons violated the labor code by terminating her for filing a worker’s compensation claim. Simmons contended her claim was preempted by federal law under the Labor Management Relations Act due to a collective bargaining agreement. The appellate court reversed, ruling that Smith's claim was not preempted as it did not require interpreting the collective bargaining agreement to prove retaliatory discharge.

Retaliatory DischargeWorkers' CompensationFederal PreemptionLabor Management Relations ActCollective Bargaining AgreementSummary JudgmentAppellate ReviewTexas Labor LawEmployment LawWrongful Termination
References
6
Case No. ADJ8332402, ADJ8336415
Regular
Oct 08, 2018

NESABEL DUMON vs. BED, BATH & BEYOND, ARCH INSURANCE

This case involves Nesabel Dumon's application for workers' compensation benefits against Bed, Bath & Beyond and Arch Insurance. The Applicant filed a Petition for Reconsideration regarding the WCJ's decision. The Workers' Compensation Appeals Board reviewed the petition and the WCJ's report, adopting the WCJ's reasoning. Consequently, the Board denied the Petition for Reconsideration.

WORKERS' COMPENSATION APPEALS BOARDPetition for ReconsiderationDENYWCJ reportadopted and incorporatedNESABEL DUMONBED BATH & BEYONDARCH INSURANCEADJ8332402ADJ8336415
References
0
Case No. MISSING
Regular Panel Decision

McLeod v. Local 140, Bedding, Curtain & Drapery Workers Union, United Furniture Workers

The Regional Director of the National Labor Relations Board (NLRB) sought a temporary injunction against Local 140, a labor union, under Section 10(l) of the National Labor Relations Act. The dispute arose after Sealy, Inc. revoked a franchise, leading to the discharge of employees from Sealy Brooklyn. These former employees, represented by Local 140, began picketing a Sealy New York showroom, demanding their jobs back. The NLRB petitioner argued that an object of the picketing was to force recognition of Local 140 as a bargaining agent, constituting an unfair labor practice under 29 U.S.C.A. § 158(b)(7)(C). However, the court found insufficient evidence to conclude that recognition was the primary objective of the picketing. Instead, it determined that the main purpose was to pressure Sealy to rehire the discharged employees. Therefore, the court denied the motion for a preliminary injunction.

Labor LawNational Labor Relations BoardTemporary InjunctionPicketingUnion OrganizingUnfair Labor PracticeSection 10(l)Recognition PicketingCollective Bargaining AgreementEmployee Discharge
References
6
Case No. MISSING
Regular Panel Decision

Fernandez v. North Shore Orthopedic Surgery & Sports Medicine, P.C.

Frank Fernandez, an x-ray technician, sued his former employer, North Shore Orthopedic Surgery & Sports Medicine, P.C., for retaliation under Title VII after filing a national origin discrimination complaint. A jury found in favor of Fernandez, awarding back pay, front pay, and punitive damages. North Shore subsequently moved for judgment as a matter of law, a new trial, and to modify the damage awards. The court denied North Shore's motions for judgment and a new trial, affirmed the jury's back pay award, but vacated and reduced the front pay award from $160,000 to $50,000, and the punitive damages award from $100,000 to $50,000.

RetaliationTitle VIIEmployment DiscriminationBack PayFront PayPunitive DamagesMitigation of DamagesFederal Rules of Civil ProcedureJudicial DiscretionEquitable Relief
References
27
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