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

Case No. ADJ4444900
Regular
Oct 19, 2011

JACQUELIN NORTON vs. PRICE, POSTEL & PARMA, INTERCARE HOLDINGS INSURANCE SERVIES

This case involves an applicant's petition for removal to challenge an order vacating submission for further medical evaluation. The applicant argued the order would cause irreparable harm and violate due process. However, the Appeals Board denied the petition, finding no significant prejudice or irreparable harm would result from appointing a new regular physician for orthopedic assessment. The Board noted deficiencies in existing reports and good cause for a fresh evaluation, concluding that any delay, given the case's age, was not sufficiently prejudicial. Reconsideration remains a proper avenue to raise objections to medical reports after the record is developed.

Petition for RemovalOrder Vacating SubmissionAppointing Regular PhysicianL.C. § 5701orthopedic medicineprejudiceirreparable harmdue processLabor Code section 4663(c)apportionment determination
References
1
Case No. MISSING
Regular Panel Decision

Kirkup v. American International Adjustment Co.

The plaintiff, a bricklayer, sustained a serious back injury and subsequently sued his employer’s workers’ compensation insurance carrier and its employees, alleging improper denial of benefits, lack of medical treatment, and breach of good faith. The defendants moved for summary judgment, contending that the Workers’ Compensation Law provided the exclusive remedy, but the Supreme Court, Dutchess County, denied their motion. On appeal, the order was reversed, and the defendants' motion for summary judgment was granted. The appellate court found the Workers’ Compensation Law to be the exclusive remedy for work-related injuries. Additionally, the plaintiff failed to state a cause of action for intentional infliction of emotional harm.

Workers' Compensation LawBreach of Insurance ContractIntentional Infliction of Emotional HarmExclusive RemedySummary JudgmentAppellate ReviewInsurance Carrier LiabilityWork-Related InjuryMedical BenefitsSanctions
References
1
Case No. ADJ7776671
Regular
Sep 11, 2013

LAWRENCE FERNANDEZ vs. LA CENTERS FOR ALCOHOL AND DRUG ABUSE, TOWER SELECT INSURANCE COMPANY c/o ILLINOIS MIDWEST

The applicant sought removal to rescind an order continuing the case for trial, arguing prejudicial error in not allowing further discovery on non-orthopedic claims. The Appeals Board denied the petition because removal is an extraordinary remedy requiring a showing of substantial prejudice or irreparable harm. The WCJ explicitly reserved the issue of good cause for further discovery to the trial judge, making reconsideration an adequate remedy. Therefore, the petition for removal was denied.

Petition for RemovalWCAB Rule 10848WCJDiscoveryNon-orthopedic claimsPsychiatric QMEInternal Medicine QMEMandatory Settlement ConferenceTrialSubstantial Prejudice
References
2
Case No. ADJ11179850
Regular
Nov 20, 2018

WAYNE ESP vs. CAMBRON ROOFING AND WATERPROOFING, INC., STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board (WCAB) denied a defendant's Petition for Removal of an administrative order setting a trial date. The defendant argued the order would cause irreparable harm, but failed to demonstrate how presenting an intoxication defense at trial would be prejudicial. The WCAB found that any issues regarding a qualified medical evaluator could be addressed by the judge at trial, thus no extraordinary remedy of removal was warranted. The matter will proceed to trial as scheduled.

Petition for RemovalIndustrial CausationAffirmative DefenseIntoxicationPanel Qualified Medical EvaluatorPQMEToxicologySignificant PrejudiceIrreparable HarmMinute Order
References
0
Case No. ADJ8185753
Regular
Jul 23, 2015

JUAN ZEPEDA vs. BERBERIAN NUT COMPANY, SEDGWICK CLAIMS MANAGEMENT SERVICES. INC.

The Workers' Compensation Appeals Board denied the defendant's petition for removal. The defendant sought to remove a finding and order requiring a new medical evaluation by an internist, arguing it was unnecessary and prejudicial. The Board found that the applicant demonstrated good cause for the additional evaluation, supported by prior medical reports and testimony indicating the need for an internist to assess specific industrial complaints. The Board concluded the defendant failed to show substantial prejudice or irreparable harm.

Petition for RemovalFinding and OrderQualified Medical Evaluator (QME)Internal MedicineDisputed Medical IssueDWC Regulation 31.7(b)Substantial PrejudiceIrreparable HarmWCJ Report and RecommendationMedical Record Development
References
1
Case No. ADJ11211443
Regular
Sep 12, 2019

YOLANDA BARROSO vs. HARTNELL COLLEGE, KEENAN \u0026 ASSOCIATES

This case involves a defendant's petition for removal after a Workers' Compensation Appeals Board (WCAB) judge ruled that chiropractic care was an appropriate specialty for the applicant's injuries. The defendant argued that the ruling was premature and prejudicial, seeking a replacement QME panel in a different specialty. However, the WCAB denied the petition, finding the defendant waived its right to challenge the specialty by not raising the issue earlier. The WCAB also determined the defendant failed to demonstrate irreparable harm or significant prejudice.

Workers' Compensation Appeals BoardPetition for RemovalFindings and OrderQualified Medical EvaluatorQME specialtychiropracticcollateral estoppelwaiverres judicatairreparable harm
References
21
Case No. ADJ9 989540
Regular
Apr 13, 2016

FELIX GARCIA vs. EUREST FINE DINING, NATIONAL UNION FIRE INSURANCE COMPANY, GALLAGHER BASSETT SERVICES, INC.

The Workers' Compensation Appeals Board denied the applicant's petition for removal, upholding the administrative law judge's decision to allow a Qualified Medical Evaluator (QME) panel in neurology. The applicant argued this was prejudicial as his primary treating physician was a chiropractor, but the Board found he failed to demonstrate irreparable harm. The WCJ's report, which the Board adopted, noted that a neurologist was best qualified to evaluate potential radicular pain and nerve conduction studies. Therefore, removal was deemed an extraordinary remedy not warranted in this case.

Workers' Compensation Appeals BoardPetition for RemovalQualified Medical EvaluatorPrimary Treating PhysicianSpecialtyChiropracticNeurologyIndustrial InjuryRadicular PainEMG/NCS
References
4
Case No. MISSING
Regular Panel Decision
Jan 23, 2015

Matter of Ruth Joanna O.O. (Melissa O.)

Justice Gesmer dissents from the affirmation of a Family Court order finding Melissa O. neglected her child. The dissent argues that the Family Court lacked a basis for its neglect finding, as there was no evidence that the mother's conduct impaired or threatened her child's condition. Furthermore, it asserts that the findings regarding the mother's failure to take medication or engage in mental health services were unsupported by admissible evidence. Gesmer, J. emphasizes that proof of mental illness alone is insufficient for a neglect finding without a causal link to actual or potential harm to the child. The dissent concludes that the petitioner failed to demonstrate that the mother's mental illness resulted in a failure to provide a minimum degree of care or that the child was harmed or at imminent risk of harm.

Child Protective ProceedingNeglect FindingParental Mental IllnessSufficiency of EvidenceImminent Risk of HarmMinimum Degree of CareFamily Court ActDissenting OpinionAdmissibility of EvidenceCausal Connection
References
15
Case No. 06-CV-0116
Regular Panel Decision

Nelson v. Brown

The petitioner, Hassan Nelson, filed a federal habeas corpus petition under 28 U.S.C. § 2254, seeking to vacate his state court conviction for armed robbery. He alleged ineffective assistance of counsel due to his trial attorney's failure to request a remedy for lost exculpatory evidence (eyewitness notes) and the improper admission of a prejudicial arrest photograph. The court found counsel's inaction regarding the Rosario violation unreasonable and prejudicial, undermining the prosecution's weak, eyewitness-dependent case. Additionally, the admission of an irrelevant and highly prejudicial 1993 mug shot, which led jurors to infer a prior criminal record, violated Nelson's right to a fair trial. Consequently, the court GRANTED Nelson's petition, VACATED his conviction, and ordered his release or a new trial within thirty days.

Habeas CorpusIneffective Assistance of CounselRosario ViolationEyewitness IdentificationPrejudicial EvidenceMug Shot AdmissibilityDue ProcessFair TrialState Court ConvictionFederal Habeas Review
References
21
Case No. MISSING
Regular Panel Decision

DeLury v. City of New York

Justice Murphy dissents from a decision that denied a motion to vacate a stay, arguing that vacating the stay is crucial to maintain the status quo and prevent irreparable harm to the plaintiffs. The dissent highlights that the City is protected by a $1,000,000 bond, making further delay harmless to the city, while immediate firings could render an expedited appeal moot. The core issue revolves around a contractual clause regarding guaranteed two-year employment for sanitation workers in exchange for waiving rights under Labor Law § 220, which the City argues is invalid under its Administrative Code, allowing for dismissals due to lack of work. Murphy also raises a factual issue regarding whether the City can fire permanent employees while retaining provisional ones. The dissent concludes that the potential irreparable harm to plaintiffs' benefits outweighs the minimal harm to the City, advocating for vacating the stay and directing an expedited appeal or trial.

Stay MotionIrreparable HarmStatus QuoExpedited AppealMootnessSanitation WorkersContractual DisputeGuaranteed EmploymentWaiver of RightsPrevailing Wage
References
1
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