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Case Law Database

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

Case No. MISSING
Regular Panel Decision

Sutherland v. City of New York

Norrel Sutherland, a dock builder, was injured on a job site while operating a defective winch motor for Pile Foundation Construction Co., Inc., his employer. He subsequently filed actions against the City of New York, its departments, Ingersoll-Rand Company, and Pile Foundation, alleging negligence and violations of Labor Law, Jones Act, and LHWCA. The Supreme Court initially dismissed claims against Pile under LHWCA and Jones Act, and some Labor Law claims against the City, but denied dismissing the Labor Law § 200 claim against the City. Upon reargument, the court adhered to its prior determinations. Sutherland and the City appealed. This appellate court dismisses several appeals and cross-appeals, upholds the dismissal of Jones Act and Labor Law §§ 240 and 241 (6) claims, and modifies the prior order to grant summary judgment dismissing the Labor Law § 200 claim against the City. The court extensively discusses the "dual capacity" employer liability under LHWCA, affirming that Pile's alleged negligence related to employer functions, not vessel owner functions, thus granting Pile immunity. The final decision is to modify and affirm the prior orders.

Longshore and Harbor Workers’ Compensation ActJones Act ClaimsLabor Law ClaimsDual Capacity DoctrineVessel Owner NegligenceEmployer ImmunitySummary Judgment AppealConstruction Site SafetyDefective EquipmentMaritime Worker Injury
References
20
Case No. MISSING
Regular Panel Decision
May 22, 2006

219 East 7th Street Housing Development Fund Corp. v. 324 East 8th Street Housing Development Fund Corp.

The appellate court reversed a May 22, 2006, order from the Supreme Court, New York County, which had denied the plaintiff's motion to vacate a prior dismissal of the complaint. The appellate court deemed the plaintiff's motion as seeking renewal of the dismissal order under CPLR 2221 (e). Upon review of new evidence, including psychiatric affirmations, it was found that the plaintiff's former attorney failed to comply with a discovery deadline due to a diagnosed mental illness. Given that all required disclosure has since been provided and no prejudice to the defendants was shown, the court concluded that dismissal was an overly harsh penalty for nonvolitional failures related to the attorney's mental health. Consequently, the prior dismissal order was vacated, and the complaint was reinstated.

Attorney misconductDiscovery violationsVacatur of orderMental health defenseAppellate reversalComplaint reinstatementProcedural lawJudicial discretionSanctionsCPLR procedure
References
2
Case No. ADJ7226408
Regular
Feb 16, 2012

Robert Thompson vs. VONS, A SAFEWAY COMPANY

Defendant Vons sought removal and reconsideration of a WCJ's order authorizing applicant's attorney to accept $3,000 for a diminished future earning capacity expert. The Appeals Board dismissed the petition for reconsideration, finding the order interlocutory and not a final determination of substantive rights, nor was defendant directly aggrieved. The petition for removal was also dismissed as untimely regarding the reservation of jurisdiction in a prior award and because defendant failed to demonstrate significant prejudice or irreparable harm. Ultimately, both the Petition for Removal and Petition for Reconsideration were dismissed.

Workers' Compensation Appeals BoardDismissalPetition for RemovalPetition for ReconsiderationStipulated AwardDiminished Future Earning CapacityDFEC ExpertOgilvie IssueJurisdiction ReservedInterlocutory Order
References
7
Case No. ADJ2501619 (OAK 0286955)
Regular
Nov 10, 2008

JAMES BRADFORD vs. MCMILLAN BROS. ELECTRIC, INC., PACIFIC EAGLE INSURANCE CO./tpa SEABRIGHT INSURANCE CO.

The Workers' Compensation Appeals Board vacated its prior order granting reconsideration and dismissed the defendant's petitions for reconsideration, removal, and stay of execution. The petition for reconsideration was dismissed as untimely because it was filed with the Appeals Board more than 25 days after the arbitrator's decision. The Board also lacked jurisdiction to grant the petition for removal or stay of execution, as these actions are not permitted for an arbitrator's decision in a Labor Code section 3201.5 carve-out case.

Workers' Compensation Appeals BoardPetition for ReconsiderationPetition for RemovalPetition for Stay of ExecutionUntimely FilingLabor Code Section 3201.5Carve-out CaseArbitrator's DecisionJurisdictionAppeals Board Rule 10865
References
4
Case No. MISSING
Regular Panel Decision

Graziano v. Medford Plaza Associates, Ltd.

Guy Graziano, an employee of Coca-Cola Company, sustained personal injuries after falling in a parking lot and received workers' compensation benefits. His insurance carrier initiated Action No. 2, as assignee, against prior property owners and managing agents after notifying Graziano of the assignment of his claim if he failed to sue within 30 days. Separately, Guy and Maureen Graziano commenced Action No. 1 against prior owners and the current owner, 210 West 29th Street Corp. The Supreme Court initially dismissed the Grazianos' action, ruling their claims were assigned to the carrier. On appeal, the order was modified: the dismissal of Action No. 1 was denied, and both actions were consolidated. The appellate court concluded that the carrier had waived its rights as an assignee against 210 West 29th Street Corp. by failing to pursue a claim against them.

Workers' Compensation LawAssignment of ClaimsPersonal InjuryProperty Owner LiabilityStatute of LimitationsWaiver of RightsConsolidation of ActionsAppellate ReviewInsurance SubrogationNew York Law
References
5
Case No. ADJ3206000
Regular
Jun 27, 2014

JENNIFER HESTER vs. TECHNICOLOR

The Workers' Compensation Appeals Board (WCAB) dismissed Jennifer Hester's petition for reconsideration of a prior decision. The WCAB found that Hester had already sought reconsideration and failed to prevail, and a subsequent petition is only permissible if new evidence is presented. Since no new evidence was submitted despite opportunities on the prior reconsideration, the WCAB dismissed the current petition. Therefore, the WCAB's prior decision, which affirmed the administrative law judge's finding that Technicolor's offer to pay for surgery per fee schedule satisfied its obligation, remains in effect.

WORKERS' COMPENSATION APPEALS BOARDPetition for ReconsiderationOpinion and Decision After Reconsiderationagreed medical evaluatorevidentiary hearingsuccessive petitionnewly aggrievedwrit of reviewnew evidencefee schedule
References
6
Case No. ADJ4237598 (LAO 0866879), ADJ2618117 (VNO 0540849)
Regular
Jul 19, 2012

CHRIS JOHN MUNOZ vs. INFINITY METALS, INC., STATE COMPENSATION INSURANCE FUND

The Appeals Board dismissed Perona Langer's petition for reconsideration because it was a successive petition following a prior dismissal, and it was also untimely filed. The Board noted that Perona Langer failed to serve its initial petition on all adverse parties, leading to the first dismissal. Furthermore, even if the petition were timely and not successive, the Board found Perona Langer's argument for a larger fee share unpersuasive, as the WCJ had reasonably allocated fees based on the results and effort of each prior counsel. The Board affirmed that a party cannot file a second petition for reconsideration after an adverse ruling; they must seek a writ of review in the Court of Appeal.

Workers' Compensation Appeals BoardPetition for ReconsiderationDismissalAttorneys' FeesLabor Code Section 4906(d)Proof of ServiceAdverse PartiesTimelinessWrit of ReviewSuccessive Petition
References
5
Case No. ADJ833288 (LBO 0385383)
Regular
Jan 29, 2016

MARTIN VALDEZ vs. NATURE'S TREE SERVICE, STATE COMPENSATION INSURANCE FUND

The applicant sought reconsideration of an order taking the case off calendar, arguing their attorney was not properly served with prior dismissal notices. The Appeals Board dismissed the Petition for Reconsideration because an order taking a case off calendar is interlocutory and not a final order subject to reconsideration. Furthermore, the Board denied the request for removal, stating the applicant had not shown substantial prejudice or irreparable harm. The applicant must address the prior dismissal order at the trial level before seeking appellate review.

WCABPetition for ReconsiderationPetition for RemovalOff Calendar OrderDismissal OrderSubstitution of AttorneysLack of ProsecutionService of ProcessInterlocutory OrderFinal Order
References
9
Case No. ADJ3375438 (SBR 0340087) ADJ7133264
Regular
Dec 15, 2015

Raynell Green vs. WesteCH INTERNATIONAL INCORPORATED, TRAVELERS INSURANCE

The Workers' Compensation Appeals Board granted reconsideration and rescinded an administrative law judge's order dismissing a lien claim. The lien claimant was dismissed for failing to prove payment of a lien activation fee prior to a lien trial. However, the Appeals Board found that because the lien conference occurred during a federal court injunction suspending the fee requirement, and the trial occurred immediately after the injunction was lifted, the lien claimant was not required to pay the fee prior to the trial. This decision aligns with prior Appeals Board precedent under similar circumstances and clarifies the timing for fee payment and proof thereof.

Lien activation feeLabor Code section 4903.06Petition for RemovalPetition for ReconsiderationWorkers' Compensation Appeals BoardWCJ dismissalprocedural due processsubstantive due processAngelotti Chiropractic Inc. v. Bakerpreliminary injunction
References
4
Case No. ADJ9937224, ADJ9937229
Regular
Feb 28, 2023

BAUDILIO LOPEZ CANSINOS vs. A PHO 21, INC., JOHN CHO, ANGIE CHO, SAMUEL CHO

The Workers' Compensation Appeals Board dismissed a petition for reconsideration because it was not filed within the statutory timeframe and challenged non-final interlocutory orders. The Board treated the petition as one for removal, which was also dismissed as untimely. Despite finding defective service of prior orders, the petition for removal was still considered late based on the petitioner's own acknowledgment of service.

Petition for ReconsiderationPetition for RemovalFinal OrderInterlocutory OrderService of ProcessUntimely PetitionWorkers' Compensation Appeals BoardAdjudication NumbersSubstantial ShareholdersPWCJ Report
References
6
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