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

Case No. 08-CV-1124 (JFB)
Regular Panel Decision
May 02, 2012

Izaguirre v. Lee

Petitioner Raul Izaguirre challenges his New York state conviction for Manslaughter in the First Degree via a habeas corpus petition, alleging insufficient evidence, improper plea persuasion by the court, and a retaliatory sentence. The federal court denies the insufficiency of evidence and improper plea persuasion claims, finding them procedurally barred or without merit. However, the court grants habeas relief on the retaliatory sentencing claim, concluding that the trial judge's pre-trial statement promising a 25-year sentence if convicted, followed by its imposition, created an unrebutted presumption of judicial vindictiveness. The case is remanded for re-sentencing by a different judge within 90 days.

Habeas CorpusManslaughter First DegreeVindictive SentencingPlea BargainingJudicial MisconductSentencing DiscretionDue ProcessSixth AmendmentJury Trial RightProcedural Bar
References
11
Case No. ADJ9116799
Regular
Nov 01, 2016

JOHN FLOYD vs. CYPRESS INSURANCE COMPANY (BHHC) for FLOYD, SKEREN & KELLY, LLP et al.

The Workers' Compensation Appeals Board denied the Petition for Removal in this case. Removal is an extraordinary remedy, and the Board only grants it when substantial prejudice or irreparable harm would result from denial, and reconsideration would be inadequate. In this instance, the Board found no persuasive evidence of such prejudice or harm, adopting the WCJ's reasoning for denial. Therefore, the petition was dismissed.

Workers' Compensation Appeals BoardPetition for RemovalSubstantial PrejudiceIrreparable HarmReconsiderationAdministrative Law Judgeextraordinary remedyCortez v. Workers' Comp. Appeals Bd.Kleemann v. Workers' Comp. Appeals Bd.CYPRESS INSURANCE COMPANY
References
2
Case No. ADJ9415345
Regular
Dec 28, 2018

MARIELA TORRES vs. GARY SAKAKIHARA, ZENITH INSURANCE COMPANY

In *Torres v. Sakakihara*, the Workers' Compensation Appeals Board (WCAB) denied the applicant's petition for reconsideration. The WCAB adopted the findings of the workers' compensation administrative law judge (WCJ), who properly relied on the opinion of an agreed medical evaluator (AME). The WCAB found no persuasive reason to disregard the AME's opinion, upholding the original decision.

Petition for ReconsiderationAgreed Medical EvaluatorWCJ reportadopted and incorporatedunpersuasive opinionWorkers' Compensation Appeals BoardMariela TorresGary SakakiharaZenith Insurance CompanyADJ9415345
References
1
Case No. VEN 0118950 VEN 0118949
Regular
Aug 10, 2007

JOSEFINA MARRON vs. WORKRITE UNIFORMS COMPANY, INC., ZENITH INSURANCE COMPANY

The Appeals Board denied the lien claimant's petition for reconsideration of a workers' compensation award, finding the WCJ's report and recommendation persuasive. However, the Board removed the case on its own motion to sanction Norma Hall and CMS Network, Inc. for submitting documents with the petition that were either already in the record or not presented to the trial judge, violating WCAB Rule 10842.

Workers' Compensation Appeals BoardPetition for ReconsiderationOrder of RemovalSanctionsLab. Code § 5813WCJLien ClaimantSB Surgery CenterWorkrite Uniforms CompanyZenith Insurance Company
References
1
Case No. ADJ11337308
Regular
Aug 02, 2019

ALBERTO OCHOA vs. ARCHDIOCESE OF LOS ANGELES EDUCATION & WELFARE CORPORATION dba SAN FERNANDO MISSION CEMETERY

The Workers' Compensation Appeals Board denied the defendant's Petition for Reconsideration because it sought to challenge an interlocutory order to develop the record, not a final order. Such an order is not subject to reconsideration but rather to removal, an extraordinary remedy rarely granted. The Board found no persuasive showing of significant prejudice or irreparable harm warranting removal. Therefore, the petition was denied as improperly filed.

Petition for ReconsiderationPetition for RemovalFinal OrderInterlocutory OrderFinding of Fact & Order to Develop the RecordThreshold IssueSubstantive RightLiabilityEmployment RelationshipBackhoe Operator
References
7
Case No. ADJ1398358 (SFO 0458408) ADJ235796 (SFO 0453152)
Regular
Nov 29, 2011

MARYELLEN MURPHY vs. SAN LEANDRO UNIFIED SCHOOL DISTRICT

The Workers' Compensation Appeals Board denied reconsideration of a decision awarding applicant Maryellen Murphy 78% permanent disability for bilateral knee and back injuries. The Board adopted the judge's reasoning, which found the applicant's QME's opinion persuasive and insufficient evidence to apportion knee disability. The Board also admonished the defendant for repeatedly referencing excluded evidence.

Workers' Compensation Appeals BoardMaryellen MurphySan Leandro Unified School DistrictKeenan & AssociatesADJ1398358ADJ235796Petition for ReconsiderationDeniedSub-rosa videoDr. Lavorgna
References
4
Case No. ADJ9036134
Regular
Dec 01, 2016

VICTOR KAO vs. TOYOTA LOGISTICS SERVICES, LLC

The Workers' Compensation Appeals Board (WCAB) denied Victor Kao's petition for reconsideration in his case against Toyota Logistics Services, LLC. The WCAB adopted the findings of the workers' compensation administrative law judge (WCJ). The WCJ properly relied on the opinion of the agreed medical evaluator (AME), as no persuasive reason was presented to disregard it. Therefore, the petition for reconsideration was denied.

Workers' Compensation Appeals BoardPetition for ReconsiderationAgreed Medical EvaluatorWCJ reportdenial of reconsiderationKao v. Toyota Logistics ServicesADJ9036134
References
1
Case No. ADJ10656062
Regular
Jul 20, 2018

FLORIVINA VIEYRA vs. KAISER PERMANENTE, SEDGWICK CMS

The Appeals Board denied Kaiser Permanente's Petition for Removal because it failed to demonstrate substantial prejudice or irreparable harm. Removal is an extraordinary remedy rarely granted, requiring more than the possibility of an adverse reconsideration. The Board found the WCJ's analysis persuasive, concluding that reconsideration would be an adequate remedy. Kaiser Permanente and its counsel were admonished that filing a frivolous petition could result in sanctions.

Petition for RemovalExtraordinary RemedySubstantial PrejudiceIrreparable HarmReconsiderationFrivolous PetitionSanctionsLab Code § 5813Cal. Code Regs. § 10561WCJ Report
References
3
Case No. ADJ6845087
Regular
Feb 27, 2017

DENNIS DEMARCO vs. PACIFIC BELL TELEPHONE COMPANY, SEDGWICK CMS

The Workers' Compensation Appeals Board denied the defendant's petition for reconsideration in the case of Dennis Demarco. The defendant failed to meet its burden of proof for apportionment because the medical opinions presented were not sufficiently reasoned or based on reasonable medical probability. The Board adopted the WCJ's reasoning, which found the opinions of the agreed medical evaluators regarding industrial causation for sleep disorders to be persuasive.

ApportionmentMedical OpinionSubstantial EvidenceReasonable Medical ProbabilitySpeculativePertinent FactsAdequate ExaminationIndustrial CausationSleep DisordersAgreed Medical Evaluator (AME)
References
7
Case No. ADJ9505364
Regular
Sep 13, 2017

ISABEL HERNANDEZ vs. OMEGA EXTRUDING CORPORATION OF CALIFORNIA, OLD REPUBLIC INSURANCE, GALLAGHER BASSETT SERVICES, INC.

This Workers' Compensation Appeals Board case denied reconsideration of a decision regarding applicant Isabel Hernandez. The Board upheld the judge's reliance on the Agreed Medical Evaluator's opinion as persuasive. However, the Board found the defendant failed to meet its burden of proof that the applicant's termination for cause negated her entitlement to temporary disability benefits. Therefore, the petition for reconsideration was denied.

Workers' Compensation Appeals BoardPetition for ReconsiderationAgreed Medical EvaluatorTemporary Disability IndemnityTermination for CauseModified WorkBurden of ProofAdministrative Law JudgeGallagher Bassett ServicesOmega Extruding Corporation
References
3
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