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

Case No. MISSING
Regular Panel Decision

Claim of Carroll v. Fagan, Inc.

The claimant, a welder, was injured while commuting to work after his employer provided a per diem for living expenses due to the distant worksite. A Workers' Compensation Law Judge initially awarded benefits, but the Workers' Compensation Board reversed, disallowing the claim. The claimant appealed, arguing entitlement due to the per diem financing travel and his status as an outside employee. The court affirmed the Board's decision, finding that the per diem was for housing, not transportation, and that the claimant reported to a fixed location, thus his commuting injury was not compensable under the Workers’ Compensation Law.

Commuting InjuryWorkers' Compensation BenefitsPer DiemFixed WorkplaceEmployment TravelCompensability of InjuryBoard Decision ReversalAppellate AffirmationEmployer Provided Lodging
References
7
Case No. MISSING
Regular Panel Decision

Picton v. Excel Group, Inc.

Ed Picton, a former employee of Excel Group, Inc., filed a complaint alleging violations of the Fair Labor Standards Act (FLSA). Picton claims Excel improperly characterized per diem payments as non-wages, leading to underpayment of overtime and incorrect tax returns. Excel moved for summary judgment, arguing the claims were moot due to a settlement offer, their per diem policy was permissible as a group approximation of expenses, and Picton incurred no tools/equipment expenses. The court denied Excel's motion, finding Picton's claims were not moot as the settlement did not cover all requested relief (like attorney's fees and liquidated damages). The court ruled that per diem payments must be reasonably approximated on an individual basis, not a group basis, and there was no evidence Picton incurred excludable expenses for tools or travel.

Fair Labor Standards ActOvertime PayPer Diem PaymentsSummary JudgmentWage and Hour DivisionDepartment of LaborRegular Rate of PayEmployee ReimbursementFederal Employment LawDistrict Court Decision
References
12
Case No. 2019 NY Slip Op 08376 [177 AD3d 509]
Regular Panel Decision
Nov 19, 2019

Mohammed v. St. Barnabas Hosp.

Plaintiff Shamima Mohammed, a per diem certified nursing assistant, was injured after slipping and falling on a wet floor while working at St. Barnabas Hospital. The hospital moved for summary judgment, arguing that Mohammed was its special employee and had already accepted Workers' Compensation benefits from her general employer, Gotham Registry, thus barring her action under the exclusivity provisions of the Workers' Compensation Law. The Supreme Court, Bronx County, granted the hospital's motion for summary judgment, finding that St. Barnabas Hospital had exclusive control over the plaintiff's work activities, supervision, and training. The court also denied plaintiff's motion for leave to reargue and renew due to lack of good cause for delay and failure to present new facts. The Appellate Division, First Department, unanimously affirmed both orders, concluding that plaintiff failed to raise a triable issue of fact.

Special Employee DoctrineWorkers' Compensation ExclusivitySummary Judgment GrantSlip and Fall InjuryCertified Nursing AssistantAppellate AffirmationMotion DenialControl TestEmployer LiabilityWorkplace Accident
References
8
Case No. MISSING
Regular Panel Decision

In Re the Arbitration Between Acme Backing Corp. & District 65, Distributive, Processing & Office Workers of America

This Per Curiam decision addresses a demand for arbitration that arose after a petitioner closed its Brooklyn plant and moved manufacturing to two factories in Missouri and Connecticut, controlled by separate corporations. The dispute involved conflicting interpretations of various articles within the collective bargaining agreement, specifically concerning the bargaining unit, management's rights, prohibitions against strikes, lockouts, or subcontracting when employees were not working full-time, and the responsibilities of 'successors in interest.' The court affirmed the lower court's order denying the motion to stay arbitration, holding that controversies involving the interpretation or application of the agreement's provisions, or any breach thereof, are exclusively within the arbitrator's jurisdiction, not the courts.

ArbitrationCollective Bargaining AgreementPlant ClosingRelocation of ManufacturingManagement RightsUnion RightsSuccessors in InterestContract InterpretationStay of ArbitrationJurisdiction of Arbitrator
References
2
Case No. MISSING
Regular Panel Decision

Texas Property & Casualty Insurance Guaranty Ass'n v. Brooks

Randy Brooks, an oil rig driller for Patterson Drilling Company, was injured in an automobile accident while transporting himself and his crew from a remote well site to their homes. Brooks received an hourly wage plus a $50 per diem, which he understood as 'driving pay' for transporting his crew, a condition he stated was essential for him to take the job. Patterson's Vice President of Operations confirmed it was the driller's responsibility to ensure a full crew and that the $50 per diem helped retain drillers in a competitive market. The district court ruled in favor of Brooks, finding his injury compensable under workers' compensation. This opinion is a concurring and dissenting one, arguing that the majority misapplied the standard of review and that Brooks's injury should be compensable under exceptions to the 'coming and going' rule, specifically that the employer furnished transportation as part of the contract and implicitly directed the travel.

Workers' CompensationCourse and Scope of EmploymentComing and Going RuleTravel ReimbursementEmployer Furnished TransportationImplied DirectionOil IndustryDrillerPer DiemSummary Judgment Review
References
12
Case No. MISSING
Regular Panel Decision

Claim of Diem v. Diem & Buerger Insurance

A vice-president of Diem & Buerger Insurance Company sustained a head injury during an off-duty softball game. The employer overtly encouraged participation, seeing it as beneficial for business networking and provided a uniform with the company logo. The workers' compensation carrier disputed coverage, arguing the injury did not arise in the course of employment, referencing Workers’ Compensation Law § 10 (1). The Workers’ Compensation Board affirmed an award of benefits, which was subsequently appealed. The appellate court affirmed the Board's decision, concluding that there was sufficient evidence to support employer sponsorship of the activity due to its overt encouragement for business advantage, thus making the injury compensable.

Workers' CompensationSoftball InjuryEmployer SponsorshipCourse of EmploymentOff-Duty ActivityBusiness BenefitInsurance IndustryLegislative AmendmentTedesco FactorsLarson Commentary
References
4
Case No. MISSING
Regular Panel Decision

Claim of Salvet v. Union Carbide Linde Division

Claimant sustained two compensable injuries, leading to a permanent partial disability classification in 1983 with a nonschedule award of $95 per week. Subsequently, in 1984, the claimant was diagnosed with a 24.2% occupational binaural hearing loss, resulting in a schedule award of $105 per week for 36.3 weeks. The Workers' Compensation Board, following an application by the carrier, reduced this schedule award to $10 per week. This reduction was based on Workers' Compensation Law § 15 (6) (a), which sets a maximum of $105 per week for compensation for permanent or temporary partial disability, indicating that the aggregate of both awards should not exceed this statutory limit. The appellate court affirmed the Board's decision, ruling that the statutory maximum applies to the total of all permanent partial disability awards, irrespective of whether they are schedule or nonschedule awards.

Workers' Compensation LawPermanent Partial DisabilityOccupational Hearing LossSchedule AwardNonschedule AwardStatutory MaximumAggregate AwardsWorkers' Compensation Board AppealStatutory InterpretationConcurrent Awards
References
6
Case No. MISSING
Regular Panel Decision

In Re Texaco Inc.

Texaco Inc. and its two subsidiaries, Texaco Capital Inc. and Texaco Capital N.V., filed for Chapter 11 bankruptcy. Texaco sought to extend the exclusive periods for filing a reorganization plan, citing the massive size of the case, over 300,000 creditors, and the pending appeal of a $10.3 billion judgment against it by Pennzoil Company. Pennzoil, a leading general unsecured creditor, moved to reduce these exclusivity periods to propose its own creditor's plan. The court, presided over by Bankruptcy Judge Howard Schwartzberg, considered the unprecedented size and complexity of Texaco's bankruptcy case, which is the largest ever filed in the U.S., and the unresolved multi-billion dollar Pennzoil judgment. The court found that Texaco had established sufficient cause for an extension, while Pennzoil failed to demonstrate cause for reduction. Consequently, Texaco's motion to extend the exclusivity periods by another 120 and 180 days was granted, and Pennzoil's motion to shorten them was denied.

BankruptcyChapter 11Exclusivity PeriodPlan of ReorganizationCorporate DebtorsComplex LitigationDebtor-Creditor DisputeJudgment AppealSouthern District of New YorkCorporate Restructuring
References
12
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

Mournet v. Educational & Cultural Trust Fund of the Electrical Industry

The plaintiff was injured after slipping and falling at premises owned by the Educational and Cultural Trust Fund of the Electrical Industry (ECT), where her employer, Prudential Recreation Corp., doing business as JIB Lanes (JIB), leased space. The plaintiff sued both ECT and JIB. ECT asserted an affirmative defense that workers’ compensation was the exclusive remedy, claiming it was an alter ego of JIB. ECT moved for summary judgment to dismiss the complaint against it, citing Workers’ Compensation Law §§ 11 and 29 (6), (17). The Supreme Court denied the motion, and the appellate court affirmed this denial, ruling that ECT failed to establish prima facie entitlement to judgment as a matter of law, particularly regarding JIB’s control over ECT’s day-to-day operations. Further discovery was also deemed warranted due to ECT's exclusive knowledge of some facts.

Summary JudgmentWorkers' Compensation ExclusivityAlter Ego DoctrinePersonal InjurySlip and FallAppellate ReviewDiscoveryPrima Facie EntitlementEmployer LiabilityRelated Entities
References
4
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