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

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. ADJ9527444
Regular
May 23, 2018

, REYES P. HERNANDEZ, vs. , QUALI RUN RANCH; STATE COMPENSATION INSURANCE FUND; OMA OJAI PACIFIC; ZENITH INSURANCE COMPANY; ACE USA INSURANCE COMPANY, Administered By ESIS; MICHAEL AND JODY CROMER, Homeowners; STATE FARM INSURANCE,

The Workers' Compensation Appeals Board granted ESIS's Petition for Removal because the WCJ's order denying ESIS a panel Qualified Medical Evaluator (PQME) evaluation was found to cause significant prejudice and irreparable harm. ESIS was not a party to the original Agreed Medical Examiner (AME) agreement between the applicant and SCIF, and the WCJ's decision unfairly bound ESIS to the AME's findings and effectively closed ESIS's discovery rights. The Board rescinded the WCJ's decision and ordered a PQME evaluation for ESIS, recognizing the denial violated ESIS's due process rights.

Petition for RemovalQualified Medical EvaluatorAgreed Medical ExaminerDue ProcessSignificant PrejudiceIrreparable HarmDiscoveryFindings and OrderWorkers' Compensation Appeals BoardCumulative Trauma
References
6
Case No. ADJ8564064, ADJ8564068
Regular
Dec 18, 2014

MARIA RAMIREZ vs. PRIORITY BUSINESS SERVICES, TRAVELERS INSURANCE COMPANY

This case involves applicant Maria Ramirez's petition for removal, seeking to undo a notation on a Minute Order from a Mandatory Settlement Conference (MSC). Ramirez alleged irreparable harm from an order compelling her to attend a Qualified Medical Evaluation (QME) despite an agreement to use an Agreed Medical Evaluator (AME). The Board denied the petition, finding no evidence that the WCJ ordered a PQME or that Ramirez requested an AME examination with the proposed evaluator. The WCJ correctly took the cases off calendar due to the defendant's timely objection to Ramirez's Declaration of Readiness to Proceed, which relied on a deceased AME's report.

Petition for RemovalMandatory Settlement ConferenceDeclaration of Readiness to ProceedAgreed Medical EvaluatorQualified Medical EvaluatorOff CalendarIrreparable HarmSubstantial PrejudiceWCJ OrderMinutes of Hearing
References
2
Case No. ADJ1953116 (MON 0363119) ADJ361727 (MON 0363153)
Regular
Jul 07, 2011

OLEGARIO PEREZ vs. STREETS AHEAD, INC., BERKSHIRE HATHAWAY HOMESTATE COMPANIES

The Workers' Compensation Appeals Board denied Olegario Perez's petition for removal and dismissed his petition for reconsideration. The WCAB adopted the judge's report, which found no prejudice or irreparable harm to the applicant from a scheduled Qualified Medical Examiner (QME) appointment. The judge recommended denial of removal as the applicant had already been found temporarily disabled by an Agreed Medical Examiner (AME), and any disputes regarding the AME's status could be addressed through attendance at the ordered PQME exam.

Petition for RemovalPetition for ReconsiderationWorkers' Compensation Appeals BoardWCJAgreed Medical Examiner (AME)Qualified Medical Examiner (QME)Declaration of Readiness to Proceed (DOR)Mandatory Settlement ConferenceMinute OrderEx parte communication
References
0
Case No. ADJ8165896, ADJ10146437
Regular
Mar 09, 2016

MARK SCHMITT vs. COUNTY OF SANTA BARBARA, CORVEL CORPORATION

The Workers' Compensation Appeals Board denied the defendant's Petition for Removal, finding no substantial prejudice or irreparable harm. The defendant sought to depose the deceased original PQME to clarify the date of injury, but the Board adopted the WCJ's reasoning. The WCJ found the defendant failed to show good cause for the deposition, as a subsequent AME's opinion change on the date of injury did not invalidate the prior PQME's findings. Removal is an extraordinary remedy granted only in exceptional circumstances.

Petition for RemovalWorkers' Compensation Appeals BoardSubstantial PrejudiceIrreparable HarmReconsiderationPQMEAMEDate of InjuryContinuous TraumaRespiratory System
References
2
Case No. ADJ6872612
Regular
Oct 22, 2013

AIDA LOPEZ vs. C&S WHOLESALE GROCERIES

The Workers' Compensation Appeals Board (WCAB) rescinded a prior order reinstating findings that applicant sustained an industrial psychiatric injury and ordered a new psychiatric PQME due to alleged ex-parte communication. The WCAB found that crucial evidence regarding the communication, specifically letters between the defendant and the PQME, was not admitted into the record. Therefore, the case is returned to the trial level for clarification of the evidence and a new decision, while also cautioning against gamesmanship and suggesting an Agreed Medical Examination (AME) to expedite the process.

WORKERS' COMPENSATION APPEALS BOARDPetition for ReconsiderationOrder Reinstating Findings and OrderPanel Qualified Medical Examiner (PQME)Labor Code section 4062.3(e)Ex-parte communicationDiscoveryAgreed Medical Examination (AME)Writ of ReviewPanel striking
References
2
Case No. ADJ6593388
Regular
Oct 21, 2014

JENNIFER GARRETT vs. HIGH DESERT MEMORIAL HOSPITAL DISTRICT, ALPHA FUND

The Workers' Compensation Appeals Board vacated its prior order granting reconsideration and dismissed the applicant's Petition for Reconsideration because it was filed against a non-final, procedural order directing an AME to issue a supplemental report. The Board also denied the applicant's Petition for Removal, finding no substantial prejudice or irreparable harm, as removal is an extraordinary remedy. The applicant's contention that she had a due process right to a new PQME was based on mere speculation about the AME's report. The Board admonished the applicant's counsel for filing the inappropriate petition.

Workers' Compensation Appeals BoardPetition for ReconsiderationPetition for RemovalAgreed Medical EvaluatorSupplemental ReportQualified Medical Evaluator PanelInterlocutory OrderFinal OrderSubstantive RightIrreparable Harm
References
11
Case No. 524606
Regular Panel Decision
Mar 29, 2018

Matter of Wolfe v. Ames Dept. Store, Inc.

Claimant Geraldine Wolfe suffered a work-related accident in April 2002, leading to established injuries to her right shoulder, neck, and upper back. Initially, a Workers' Compensation Law Judge (WCLJ) found her permanently totally disabled. However, the Workers' Compensation Board, after an impartial medical evaluation by physiatrist Paul Salerno, determined it was premature to classify her with a permanent disability. Instead, the Board found a temporary marked partial disability and directed further medical testing. The Board also concluded that claimant was not attached to the labor market as of December 16, 2013, as her employment search efforts had ceased. The Appellate Division, Third Department, affirmed the Board's decision, finding it supported by substantial evidence regarding both the disability classification and labor market attachment.

Workers' Compensation LawPermanent Total DisabilityTemporary Partial DisabilityLabor Market AttachmentImpartial Medical SpecialistMedical Impairment GuidelinesAppellate ReviewCervical Spine PainDegenerative ChangesSubstantial Evidence
References
5
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