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

Case No. 2018 NY Slip Op 07432 [166 AD3d 621]
Regular Panel Decision
Nov 07, 2018

Matter of Progressive Advanced Ins. Co. v. New York City Tr. Auth.

This case involves an appeal by Progressive Advanced Insurance Company (Progressive) against the New York City Transit Authority (NYCTA) concerning an arbitration award. The dispute arose under Insurance Law § 5105 regarding a loss transfer claim, where NYCTA sought reimbursement from Progressive for workers' compensation benefits paid to its employee after a collision involving Progressive's insured. The central issue was whether a 20% no-fault offset applied to the workers' compensation wages, with the arbitrator ruling it did not, as a one-third offset had already been applied. Progressive's petition to vacate the award was denied by the Supreme Court, Queens County. The Appellate Division affirmed this denial, concluding that the arbitrator's determination was supported by a reasonable hypothesis and was not arbitrary or capricious.

Arbitration AwardLoss TransferInsurance LawWorkers' Compensation BenefitsNo-Fault OffsetAppellate ReviewStatutory InterpretationEvidentiary SupportArbitrary and CapriciousReasonable Hypothesis
References
9
Case No. MISSING
Regular Panel Decision

Progressive Casualty Insurance v. New York State Insurance Fund

Zimone Brown, a sanitation worker insured by the New York State Insurance Fund (NYSIF), was injured after being struck by an automobile insured by Progressive Casualty Insurance Company (Progressive). The NYSIF sought reimbursement of workers’ compensation benefits from Progressive through arbitration, citing Insurance Law § 5105. Progressive contended that the garbage truck was not 'involved' in the accident as statutorily required. Although the arbitration panel sided with NYSIF, the Supreme Court denied Progressive's petition to vacate the award. This appellate court reversed the Supreme Court's decision, finding no evidentiary support or rational basis for the arbitrators' determination, thus granting Progressive's petition and vacating the arbitration award.

Arbitration Award VacaturInsurance LawWorkers' Compensation BenefitsLoss Transfer ProvisionsStatutory InterpretationMotor Vehicle AccidentEvidentiary SupportArbitrary and CapriciousJudicial ScrutinyCPLR Article 75
References
15
Case No. MISSING
Regular Panel Decision
May 17, 2011

Avrio Group Surveillance Solutions, Inc. v. Essex Insurance

Plaintiff Avrio Group Surveillance Solutions commenced a declaratory judgment action against Defendant Essex Insurance Company, seeking an order to defend and indemnify Avrio in a personal injury action. Essex filed a motion to dismiss, which was converted to a motion for summary judgment. The court addressed two main exclusions: the Completed Operations Exclusion and the Contractual Liability Exclusion. The court found a potentiality of coverage under the Completed Operations Exclusion due to ambiguities in the term "intended use" and unresolved factual issues regarding the completion of work, denying summary judgment on this ground. However, the court granted summary judgment in favor of Essex regarding the Contractual Liability Exclusion, as the subcontract did not qualify as an "insured contract" under the policy's specific definition in effect at the time of the incident, and Avrio was presumed to have agreed to these terms. The case will proceed to an evidentiary hearing on the Completed Operations Exclusion.

Insurance CoverageDeclaratory JudgmentSummary JudgmentContractual Liability ExclusionCompleted Operations ExclusionInsurance Policy InterpretationChoice of LawMaryland Contract LawFederal Civil ProcedureDuty to Defend
References
37
Case No. 533217
Regular Panel Decision
Jun 23, 2022

Matter of Kromer v. UPS Supply Chain Solutions

Claimant Douglas A. Kromer established a workers' compensation claim for a work-related rotator cuff tear in his left shoulder. While a Workers' Compensation Law Judge (WCLJ) initially found a 35% schedule loss of use (SLU) of the left arm, the Workers' Compensation Board modified this to 20%, crediting the opinion of Gerald Coniglio, an orthopedic surgeon. The Board further ruled that Kromer was not entitled to a further SLU award due to prior left elbow SLU awards totaling 30%, which exceeded the current 20% award. The Appellate Division reversed the Board's decision, remitting the matter for further consideration. The court found that the Board failed to consider whether the shoulder injury resulted in an increased loss of use of the left arm beyond the prior elbow injuries and also lacked a rational basis for not adding value for a posterior extension defect in the SLU calculation, departing from its own precedent.

Workers' CompensationSchedule Loss of Use (SLU)Rotator Cuff InjuryShoulder InjuryLeft ArmPrior Injury OffsetMedical OpinionImpairment GuidelinesAppellate ReviewRemittal
References
19
Case No. MISSING
Regular Panel Decision

Durant v. A.C.S. State & Local Solutions Inc.

Plaintiff Sharon Durant filed a lawsuit against A.C.S. State and Local Solutions, Inc. (ACS) alleging sexual harassment and a hostile work environment. Durant, a customer service representative, claimed she received two sexually explicit notes from a co-worker, Terri Simeon. Upon reporting the second note, ACS swiftly responded by moving Durant's workstation and disciplining Simeon, which ended the direct harassment. Despite these actions, Durant resigned, asserting constructive discharge because Simeon was not fired. The court granted summary judgment in favor of ACS, ruling that there was no quid pro quo harassment, the environment was not sufficiently hostile, no constructive discharge occurred, and her state law claims and intentional infliction of emotional distress claim also failed or were time-barred.

Sexual HarassmentHostile Work EnvironmentSummary JudgmentQuid Pro QuoConstructive DischargeEmployer LiabilityCorrective ActionCo-worker MisconductEmployment DiscriminationTitle VII
References
21
Case No. 2021 NY Slip Op 07321
Regular Panel Decision
Dec 23, 2021

Matter of Salinas v. Power Servs. Solutions LLC

The case involves a workers' compensation claim by Michel Salinas, which identified Power Services Solutions LLC as the employer and Everest National Insurance Company as the carrier. Everest's appeal to the Workers' Compensation Board was denied as untimely despite concerns about deficient notice and a potentially fraudulent certificate of insurance. The Appellate Division, Third Department, reversed the Board's decision, finding an abuse of discretion given the strong evidence of fraud and the flawed communication to Everest. The matter was remitted to the Board for further proceedings to investigate the fraud allegations. The court emphasized that the Board should not ignore legitimate evidence of fraud.

Workers' Compensation LawAppellate DivisionBoard DiscretionTimeliness of AppealFraudulent Insurance CertificateNotice RequirementsEmployer IdentificationCarrier LiabilityRemittalAbuse of Discretion
References
25
Case No. MISSING
Regular Panel Decision

Progressive Transportation Services, Inc. v. County of Essex

Progressive Transportation Services, Inc. sued Essex County, James Pierce, and Clifford Donaldson, asserting a 42 U.S.C. § 1983 civil rights claim for First Amendment retaliation and a state law claim for breach of contract. Progressive claimed the County retaliated against it by rejecting bids and withholding funds after Progressive combined transportation routes for efficiency, arguing this was a matter of public concern regarding taxpayer money and fuel usage. The Court determined that Progressive's speech, made in the context of contract negotiations to secure payment, was primarily an issue of economic self-interest and not a matter of public concern protected by the First Amendment. Consequently, the Court granted the defendants' motion for summary judgment, dismissing the federal claim with prejudice. The state law breach of contract claim was dismissed without prejudice, as the court declined to exercise supplemental jurisdiction after the dismissal of the federal claim.

42 U.S.C. Section 1983Civil RightsBreach of ContractFirst Amendment RetaliationSummary JudgmentGovernment ContractsFreedom of SpeechPublic Concern DoctrineSupplemental JurisdictionGovernmental Waste
References
16
Case No. MISSING
Regular Panel Decision

Progressive Northern Insurance Co. v. Sentry Insurance A Mutual Co.

Progressive Northern Insurance Company initiated an arbitration against Sentry Insurance A Mutual Company to recover first-party benefits paid to its insured following an automobile accident. After an initial arbitration claim (priority-of-payment) was denied, Progressive commenced a second arbitration based on a loss-transfer claim for the same reimbursement. Sentry raised the affirmative defense of res judicata, which the arbitrator upheld, denying Progressive's claim. Progressive then petitioned the Supreme Court, Nassau County, to vacate this arbitration award, but the petition was denied. The appellate court affirmed the Supreme Court's order, ruling that the arbitrator properly exercised its authority in applying res judicata, as both claims arose from the same transaction despite different legal theories.

Res JudicataArbitration Award VacaturInsurance ReimbursementAutomobile Accident ClaimLoss Transfer ClaimPriority-of-Payment ClaimAppellate ReviewSupreme Court NassauCPLR Article 75Arbitration Forum
References
24
Case No. MISSING
Regular Panel Decision

Garden State Anesthesia Associates, PA v. Progressive Casualty Insurance

Garden State Anesthesia Associates (GSAA) sued Progressive Casualty Insurance Company for unpaid first-party no-fault benefits after providing services to Angela Gowan-Walker. Progressive delayed payment, citing the need for Gowan-Walker's examination under oath (EUO) and extensive medical and workers' compensation records. Although Gowan-Walker completed her EUO, Progressive continued to issue delay letters, requesting information primarily from third parties and Gowan-Walker's attorney, without directly contacting GSAA for verification. The court denied Progressive's motion for summary judgment, ruling that an insurer cannot indefinitely toll the 30-day payment period by requesting verification unrelated to the specific provider's claim or by failing to request verification directly from the provider.

No-fault benefitsSummary JudgmentInsurance LawVerification RequestDelay LetterEUOMedical RecordsInsurance ClaimsTimelinessTolling
References
9
Case No. ADJ9489699
Regular
Jul 15, 2016

, Applicant, JEYBI JAQUELINE CALDERON MIRANDA vs. PERNECKY MANAGEMENT GROUP DBA MC DONALDS; USF&G, administered by SEDGWICK CLAIMS MANAGEMENT

This case involves a lien claimant, Progressive Orthopedic Solutions, seeking reconsideration after their lien was dismissed. The lien claimant failed to appear at a lien conference and subsequently did not receive notice of the adjourned date. The Workers' Compensation Appeals Board (WCAB) denied the petition, adopting the judge's report which found the claimant's contentions to be untrue and noted a pattern of misrepresentation. The judge recommended sanctions against the lien claimant's representative for wasting court resources.

Workers' Compensation Appeals BoardPetition for ReconsiderationAdministrative Law JudgeLien ClaimantProgressive Orthopedic SolutionsMJR Management ServicesWillard SextonDismissal of LienNotice of Intention to DismissLabor Code Section 5813
References
0
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