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

Case No. 2024 NY Slip Op 00599 [224 AD3d 428]
Regular Panel Decision
Feb 06, 2024

Matter of New Millennium Pain & Spine Medicine, P.C. v. Garrison Prop. & Cas. Ins. Co.

This case involves two appeals by New Millennium Pain & Spine Medicine, P.C. against Garrison Property & Casualty Insurance Company and GEICO Casualty Company. New Millennium sought to vacate master arbitration awards that denied its claims for no-fault benefits for medical services. The Supreme Court denied these applications. The Appellate Division, First Department, affirmed the Supreme Court's decisions, stating that an arbitrator's award will not be set aside unless it is irrational. The court also addressed the argument regarding a 20% wage offset in no-fault benefits, finding it unavailing under Insurance Law § 5102 (b). Ultimately, New Millennium was not entitled to attorneys' fees as it was not the prevailing party.

No-fault benefitsarbitration awardvacaturinsurance lawwage offsetappellate reviewmedical servicesno-fault policy exhaustionattorneys' feesCPLR Article 75
References
8
Case No. MISSING
Regular Panel Decision
May 14, 2014

Forest Rehabilitation Medicine PC v. Allstate Insurance

Plaintiff Forest Rehabilitation Medicine PC sued defendant Allstate to recover $3,490 for no-fault medical benefits provided to assignor Tracy Fertitta. The core issue was the medical necessity of "Calmare pain therapy" (scrambler therapy), a novel treatment. The court conducted a bench trial, hearing expert testimony from both sides. Dr. Ayman Hadhoud, for the defense, argued the treatment was not medically necessary, not cost-effective, and essentially a form of physical therapy. Dr. Jack D’Angelo, for the plaintiff, countered that the therapy, though new, had FDA approval, was used by the military, and reduced the assignor's pain levels. Applying the Frye standard, the court found the evidence regarding Calmare scrambler therapy reliable and ruled it was medically necessary for Ms. Fertitta's pain management. Consequently, judgment was awarded to the plaintiff, Forest Rehabilitation Medicine PC, for $3,490 plus attorney's fees and interest.

No-Fault InsuranceMedical NecessityCalmare Pain TherapyScrambler TherapyNovel TreatmentFrye StandardExpert TestimonyPain ManagementFDA ApprovalCervical Radiculopathy
References
14
Case No. No. M2018-01696-COA-R3-CV; No. 15-4-IV
Regular Panel Decision
Dec 07, 2020

American Board of Craniofacial Pain v. American Board Of Orofacial Pain

This case involves an appeal concerning a failed merger between two professional dental associations, American Board of Craniofacial Pain (ABCP) and American Board of Orofacial Pain (ABOP). ABCP sued ABOP, alleging a breach of an agreement to merge formed through email exchanges and seeking specific performance and damages. The Chancery Court for Davidson County granted summary judgment to ABOP, finding no meeting of the minds and thus no enforceable contract. The Court of Appeals of Tennessee affirmed this decision, concluding that the parties’ objective manifestations showed a lack of mutual assent because an essential term (disposition of intellectual property) was not agreed upon and they intended to reduce the agreement to a formal Memorandum of Understanding, which was never finalized. The court also agreed that specific performance was not an available remedy due to the incompleteness of the purported contract.

Contract DisputeMerger NegotiationsCorporate MergerDental ProfessionMutual AssentSpecific Performance DenialSummary Judgment AffirmationTennessee Court of AppealsContract FormationLack of Agreement
References
26
Case No. ADJ12347424
Regular
Nov 09, 2020

DANIELLE LOOMIS-LYONS vs. COUNTY OF MENDOCINO

This case concerns applicant Danielle Loomis-Lyons' injury to her right knee. The WCJ initially found injury AOE/COE, ordered a replacement QME panel in orthopedic surgery, and deemed the prior pain management QME report inadmissible. The Appeals Board granted reconsideration, affirming the injury finding and the need for a replacement panel, but corrected the panel specialty to pain medicine. The Board rescinded findings regarding the appropriate panel specialty due to lack of notice and opportunity to be heard.

QME panelpain managementorthopedic surgeryAOE/COEinadmissible reportPetition for ReconsiderationremovalLabor Code section 4062.1AD Rule 31.3AD Rule 31.5
References
12
Case No. ADJ11913752
Regular
Nov 19, 2019

LAURA DOW vs. UCSF, administered by SEDGWICK CLAIMS MANAGEMENT SERVICES

This case concerns a dispute over the proper procedure for requesting a Qualified Medical Evaluator (QME) panel after a workers' compensation claim was denied. The Workers' Compensation Appeals Board (WCAB) granted removal, reversing a WCJ's decision. The WCAB found that the defendant's request for an orthopedic surgery QME panel was valid, initiated after the denial notice and statutory waiting period. They also determined that orthopedic surgery was an appropriate specialty, overriding the WCJ's order for a pain medicine panel. The parties are now directed to proceed with the orthopedic surgery QME panel.

QME panelPetition for RemovalOpinion and OrderFindings and OrdersMedical UnitPain MedicineOrthopedic SurgeryDenial NoticeQualified Medical EvaluatorLabor Code Section 4060
References
4
Case No. ADJ12180865
Regular
Dec 01, 2022

FRANCELIA DIAZ vs. MEDTRONIC, INC., ACE AMERICAN INSURANCE COMPANY

The Appeals Board granted reconsideration and rescinded the WCJ's order for an additional pain management QME panel. The Board found the applicant did not demonstrate good cause for the panel, as the current orthopedic QME's reports sufficiently addressed the applicant's diagnoses, including CRPS. The Board substituted new findings acknowledging the applicant's AOE/COE injuries but denying the request for a pain management QME panel.

Workers' Compensation Appeals BoardMedtronicInc.Ace American Insurance CompanyAdjudication Number ADJ12180865Petition for ReconsiderationAmended Opinion on DecisionFindings of Fact and OrderInjury AOE/COEQuality Control Inspector
References
10
Case No. 2020 NY Slip Op 04896 [186 AD3d 1770]
Regular Panel Decision
Sep 03, 2020

Matter of Wen Liu v. Division of Gen. Internal Medicine, Mount Sinai Sch. of Medicine

Wen Liu, a data programming analyst, filed for workers' compensation benefits in May 2010, claiming a neck injury from a June 5, 2008 fall at work due to dizziness. The employer failed to timely file a notice of controversy, but a Workers' Compensation Law Judge (WCLJ) disallowed the claim, finding no causal connection between the injuries and employment. The Workers' Compensation Board upheld this decision, which the claimant appealed. The Appellate Division affirmed the Board's decision, emphasizing that the employer's procedural failure did not absolve the claimant of proving a causal relationship. Substantial evidence supported the Board's rejection of the claimant's medical proof, as emergency room records contradicted her later descriptions of the incident and indicated pre-existing conditions.

Workers' CompensationCausationMedical EvidenceTimely NoticeBurden of ProofInjuryFallDizzinessNeck InjuryCarpal Tunnel Syndrome
References
7
Case No. ADJ8876167
Regular
Sep 18, 2015

Manuel Ruiz vs. Schwan's Home Services, Inc., Hartford Insurance Company

The Workers' Compensation Appeals Board denied the defendant's Petition for Removal, upholding the Administrative Law Judge's (ALJ) decision. The defendant argued the ALJ erred by admitting a Qualified Medical Evaluator's (QME) reports and by ordering a second QME panel in internal medicine. The Board found no substantial prejudice or irreparable harm to warrant removal, agreeing with the ALJ that the QME substantially complied with reporting deadlines and that an internal medicine evaluation was warranted due to the applicant's alleged stroke. Therefore, removal was deemed an inappropriate and extraordinary remedy.

RemovalPetition for RemovalWorkers' Compensation Appeals BoardWCJ reportsubstantial prejudiceirreparable harmreconsiderationQualified Medical EvaluatorQME panelpsychology
References
2
Case No. ADJ722399 (SDO 0324979) ADJ1109167 (SDO 0339490)
Regular
Feb 07, 2011

SAMANTHA HOWE vs. SCRIPPS HEALTH, Permissibly Self-Insured

The Appeals Board denied defendant Scripps Health's petition for removal, upholding the WCJ's decision to deny a compel order for a QME examination. Scripps Health sought to compel an examination by Dr. Strauser regarding applicant Samantha Howe's pain management treatment. The Board ruled that Scripps Health's objection to the pain management treatment must be addressed through utilization review, not a QME evaluation, citing the *Sandhagen* Supreme Court decision. Therefore, Scripps Health is barred from using Labor Code section 4062 to dispute treatment recommendations for pain management.

Petition for RemovalQualified Medical EvaluationMedical ExaminationPain Management TreatmentUtilization ReviewLabor Code Section 4610Labor Code Section 4062Industrial InjurySurgical TechnicianDental Treatment
References
1
Case No. ADJ94 70576
Regular
Jun 26, 2017

CARLOS CAMARGO vs. COX PETROLEUM TRANSPORT, EM OIL TRANSPORT, INC., STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board (WCAB) granted the applicant's Petition for Reconsideration, rescinded the original Finding and Order, and returned the case for further proceedings. The WCAB found that the primary medical evaluator's (QME) reports were not substantial evidence because they were based on incomplete and inaccurate history, and failed to consider the impact of industrial stress on the applicant's internal medicine conditions. Additionally, the WCAB determined that a separate evaluation by a psychology or psychiatry QME was warranted to address the applicant's psychiatric injury claim, as the internal medicine QME deferred to mental health specialists. Therefore, the record requires further development regarding both the physical and psychiatric aspects of the applicant's claimed industrial injuries.

AOE/COEQMEhypertrophic obstructive cardiomyopathyindustrial stresspsychiatric injuryDSM-IVLabor Code section 3208.3preponderance of the evidenceaggravated conditionsupplementation of the record
References
12
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