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

Case No. ADJ7532290
Regular
Aug 28, 2012

MAXINE BROWN VIRGIL vs. LUNCH STOP, INC., EMPLOYERS COMPENSATION INSURANCE

This case involves a dispute over obtaining a Qualified Medical Evaluator (QME) panel. The applicant requested a new panel because a QME on the initial panel could not provide an appointment within 60 days. However, the applicant failed to properly strike a physician from the original panel after the defendant did. As a result, the defendant was authorized to schedule an appointment with a remaining physician, and the applicant was not entitled to a new QME panel. The Appeals Board granted removal to amend the prior order to reflect a rescheduled appointment with the original QME.

Workers' Compensation Appeals BoardPetition for RemovalQualified Medical EvaluatorpanelstrikeLabor Code section 4062Administrative Director Rule 31.5section 4062.2(c)medical evaluatorappointment
References
1
Case No. MISSING
Regular Panel Decision

Union Appointed Trustees of the Tapers Industry Insurance & Annuity Funds v. Employer-Appointed Trustees of the Tapers Industry Insurance & Annuity Funds

A dispute arose between the Employer-Appointed Trustees and Union-Appointed Trustees of the Tapers Industry Insurance and Annuity Funds concerning delinquent employer contributions. An arbitrator issued an award, which the Employer-Appointed Trustees sought to confirm and the Union-Appointed Trustees cross-moved to vacate. Judge Walker of the District Court reviewed the arbitration award, noting the arbitrator based his findings on prior judicial decisions rather than independently interpreting the collective bargaining agreement. The Court determined that the arbitrator failed to apply the contract as bargained for by the parties, thus exceeding his authority. Consequently, the Court vacated the arbitration award and remanded the dispute for proceedings consistent with its order.

Arbitration AwardVacate Arbitration AwardConfirm Arbitration AwardCollective Bargaining AgreementTrust FundsDelinquent ContributionsRes JudicataManifest Disregard of LawScope of Judicial ReviewLabor Dispute
References
12
Case No. ADJ1692556 (STIK 0207020) ADJ2977889 (STK 0208240)
Regular
Aug 06, 2009

CATHY HAWKINS vs. SUTTER HEALTH CORPORTION (dba) SUTTER TRACY COMMUNITY HOSPITAL

The Workers' Compensation Appeals Board (WCAB) granted removal and reversed a WCJ's order to appoint a new QME. The WCAB found the WCJ erred in concluding the applicant was entitled to a new QME panel for a slight delay in scheduling an examination. They reasoned that the applicant's allegations did not definitively prove Dr. Choi "could not" schedule an earlier appointment or that a waiver was violated. The WCAB determined that requiring a new QME process for minor scheduling delays, especially with an established QME, would be wasteful.

Petition for removalQualified Medical Evaluator (QME)60-day time limitappointment schedulingwaiverprejudiceirreparable harmfinal orderreconsiderationsubstantiative issue
References
4
Case No. ADJ3570526 (VNO 0553441) ADJ3614404 (VNO 0552970)
Regular
May 22, 2014

BIYAZEN JEMBERE vs. AMERIPARK, INC.; NATIONAL LIABILITY & FIRE INSURANCE; OAK RIVER INSURANCE CO., Adjusted by ACCA

The applicant petitioned for removal, seeking to rescind an order compelling attendance at a QME examination due to an alleged lack of opportunity to respond and a valid excuse for a prior missed appointment. The applicant's brother died in Ethiopia, causing him to be out of the country and miss an initial QME appointment. Although the applicant subsequently attended the rescheduled QME exam, rendering the removal petition moot regarding attendance, the Appeals Board dismissed the petition.

Petition for RemovalOrder Suspending ProceedingsPetition to Compel AttendanceMedical EvaluationQualified Medical Evaluator (QME)Excusable NeglectBureaucratic ReasonsEAMSMootWorkers' Compensation Appeals Board (WCAB)
References
0
Case No. ADJ345248 (RDG 0128229)
Regular
Oct 26, 2011

JEREMY CHISSIE vs. REIBES AUTO PARTS, LLC, PACIFIC COMPENSATION INSURANCE COMPANY

The Workers' Compensation Appeals Board granted removal and rescinded the WCJ's order to appoint an Independent Medical Examiner (IME). The Board found the WCJ improperly bypassed the established procedure for selecting a Qualified Medical Evaluator (QME) when the original QME became unavailable. Instead, the matter must return to the trial level to follow the Administrative Director's rules for appointing a replacement QME. This ensures the defendant's right to participate in the physician selection process.

Workers' Compensation Appeals BoardPetition for ReconsiderationPetition for RemovalIndependent Medical Examiner (IME)Qualified Medical Evaluator (QME)Labor Code section 4062.2Administrative Director's Rule 31.5Rule 32.6Medical UnitPanel QME
References
3
Case No. MISSING
Regular Panel Decision

Massachusetts Mutual Life Insurance v. Avon Associates, Inc.

This case addresses a motion by defendants mortgagors to vacate an ex parte order appointing a receiver during a mortgage foreclosure action. Defendants asserted that the lack of notice for the receiver's appointment violated CPLR 6401 and their Federal constitutional due process rights, citing Fuentes v Shevin. The court found that New York's Real Property Actions and Proceedings Law § 1325 (subd 1) permits ex parte receiver appointments when the mortgage contract explicitly waives notice. Furthermore, the court distinguished the present case from Fuentes, concluding that the sophisticated business operators involved had knowingly and voluntarily waived their right to notice, akin to the circumstances in Overmyer Co. v Frick Co. Based on these findings, the court affirmed the validity of the ex parte order and denied the defendants' motion to vacate the appointment of the receiver.

Mortgage ForeclosureReceiver AppointmentEx Parte OrderDue ProcessWaiver of NoticeContractual WaiverCPLRReal Property Actions and Proceedings LawConstitutional LawBusiness Disputes
References
9
Case No. ADJ8394536
Regular
Jan 23, 2014

IVIN DREW vs. NESTLE USA, INC.

The defendant, Nestle USA, Inc., petitioned for removal, challenging a WCJ's order for a second QME appointment due to a late supplemental report. The Appeals Board granted the petition because the defendant's crucial exhibits and medical reports were not scanned into the electronic system, preventing a merits-based decision. Consequently, the Board rescinded the WCJ's prior order and returned the case to the trial level to establish a sufficient record. This action ensures the parties can properly litigate the dispute over the QME appointment rules.

Petition for RemovalQualified Medical EvaluatorLate Supplemental ReportAdministrative Director RuleEAMSMedical ReportsAppeals BoardWCJRescinded OrderTrial Level
References
2
Case No. ADJ11350784
Regular
Jan 13, 2020

LUIS RODRIGUEZ vs. BRAD NYMAN DBA LIVE OAK DAIRY, ZENITH INSURANCE COMPANY

This case concerns a workers' compensation applicant challenging a finding that he waived his right to a replacement Qualified Medical Evaluator (QME) panel. The applicant requested a replacement panel after the initially appointed QME could not schedule an exam within 60 days, but the exam was ultimately scheduled within 90 days. The Workers' Compensation Appeals Board denied the applicant's petition, finding that by accepting an appointment within the 90-day window, he waived his right to a replacement panel. The Board also found the applicant's due process claims unpersuasive, as he had a full opportunity to litigate the issue.

QME panel disputewaiver of replacement panelAOE/COEdue processthreshold issueinterlocutory decisionremoval standardirreparable harmsignificant prejudiceAD Rule 31.3
References
5
Case No. Index No. 500294/2018 Appeal No. 16497-16498-16499 Case No. 2022-00247, 2022-00958, 2022-01285, 2022-02741
Regular Panel Decision
Mar 16, 2023

Matter of Edgar V.L.

Alison L. initiated proceedings to appoint an Article 81 guardian for her incapacitated brother, Edgar V.L., alleging financial exploitation by Rachida Naciri, who later married Edgar and entered into a prenuptial agreement. Judy S. Mock was appointed temporary guardian and Gary Elias as counsel. Concerns arose when Mock and Elias failed to investigate the marriage and financial transactions. A special guardian, Lissett C. Ferreira, was subsequently appointed to investigate these matters. The Supreme Court removed Mock and discharged Elias due to conflicts of interest and dereliction of fiduciary duties, appointing successor guardian and counsel. The Appellate Division affirmed these orders, ruling that Alison L. had standing and that the court's actions regarding the appointments and removals were a proper exercise of discretion. The court also dismissed an appeal as moot.

Incapacitated personGuardianshipFinancial exploitationPrenuptial agreementFiduciary dutiesAttorney misconductSpecial guardianArticle 81Due processAppellate review
References
14
Case No. MISSING
Regular Panel Decision

In re SLM Corp. Securities Litigation

This Memorandum and Order addresses the appointment of a lead plaintiff in a securities class action against SLM Corporation. Initially, Westchester Capital Management, Inc. was appointed, but its Article III standing was questioned following a Second Circuit ruling in W.R. Huff Asset Mgmt. v. Deloitte & Touche LLP, which clarified that investment advisors without a valid assignment of claims lack standing. The court denied Westchester Capital's subsequent motion to approve a post-appointment assignment, reasoning it would not cure the initial lack of standing and presented unique legal issues for the class. Consequently, the court considered other movants for lead plaintiff, ultimately appointing SLM Venture, a joint venture with the largest financial interest, finding it satisfied the typicality and adequacy requirements under the PSLRA and Rule 23. Girard Gibbs & De Bartolomeo, LLP was approved as lead counsel for SLM Venture.

Securities Class ActionLead PlaintiffArticle III StandingInvestment AdvisorAssignment of ClaimsPSLRARule 23Typicality RequirementAdequacy RequirementSecond Circuit Law
References
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