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

Case No. 2024 NY Slip Op 03519
Regular Panel Decision
Jun 27, 2024

Matter of Reyes Bonilla v. XL Specialty Ins.

Claimants Jose Reyes Bonilla and Marvin Reyes Bonilla, carpenters, were involved in a motor vehicle accident while commuting to a job site in Greenpoint, Brooklyn, in an employer-provided van. They filed workers' compensation claims, which were established against XL Specialty Insurance by a Workers' Compensation Law Judge (WCLJ). XL Specialty appealed, arguing its policy did not cover commuting injuries and that it was not the proper carrier. The Workers' Compensation Board affirmed the WCLJ's decisions, finding XL Specialty failed to preserve its challenge to being the carrier and that the employer's responsibility for transportation made the injuries compensable. The Appellate Division, Third Department, affirmed, agreeing that the issue was unpreserved and that the injuries arose out of and in the course of employment due to the employer's control over the conveyance.

Workers' CompensationMotor Vehicle AccidentEmployment InjuriesCommuting AccidentEmployer Provided TransportationWrap-up PolicyInsurance Coverage DisputeCarrier LiabilityIssue PreservationAppellate Review
References
16
Case No. MISSING
Regular Panel Decision

Claim of Smith v. Specialty Services, Inc.

Claimant, a construction foreman for Specialty Services, Inc., was injured while performing work for a church in Pennsylvania. Although Specialty filed a work-related accident report and its carrier began paying benefits, the carrier filed a notice of controversy over seven months after the Workers' Compensation Board indexed the case, exceeding the 25-day limit. The carrier argued that the late filing was due to surprise, mistake, and newly discovered evidence regarding the church's involvement, which claimant and Specialty allegedly failed to disclose. The Workers' Compensation Board refused to excuse the late filing, finding the carrier failed to demonstrate good cause. The appellate court affirmed the Board's decision, noting that the carrier had ample time to investigate and that belatedly obtained evidence is not a sufficient ground to excuse a late filing.

Workers' CompensationLate Notice of ControversyTimely FilingEmployer-Employee RelationshipInsurance CarrierGood CausePleading BarAppellate ReviewBoard DecisionStatutory Interpretation
References
2
Case No. ADJ9178558 ADJ9178559
Regular
Feb 05, 2015

JAVIER RIVERA vs. JACO ENVIRONMENTAL, INC., ZURICH AMERICAN INSURANCE COMPANY

The Workers' Compensation Appeals Board denied a Petition for Removal filed by Zurich American Insurance Company concerning a dispute over Qualified Medical Evaluator (QME) panel selection. The administrative law judge had found both parties requested QME panels timely, but ruled the defendant's request invalid for seeking a different specialty without justification. The Board agreed that removal was not warranted and upheld the decision to assign a QME in pain management, the same specialty as the primary treating physician. The Board also clarified the interpretation of Rule 31.1(b), emphasizing the requirement for supporting documentation when requesting a QME in a different specialty.

Petition for RemovalQualified Medical Evaluator (QME) panelprimary treating physicianspecialtypain managementMedical Directortimely requestjustificationRule 31.1(b)extraordinary remedy
References
3
Case No. ADJ7946888; ADJ7987800
Regular
Jul 12, 2012

PAULA LECOCQ vs. ASSOCIATED FEED & SUPPLY COMPANY, INSURANCE COMPANY OF THE WEST

The Appeals Board granted the employer's Petition for Removal, rescinding the prior order compelling a specific QME specialty selection. The Board found the Administrative Law Judge improperly decided the QME specialty dispute at a Mandatory Settlement Conference without party agreement or a proper evidentiary record. The case is returned to the trial level for a formal hearing on the QME specialty issue.

Petition for RemovalQualified Medical Evaluator (QME) panelspecialty designationmandatory settlement conference (MSC)due processevidentiary recordAdministrative DirectorMedical DirectorWorkers' Compensation Appeals Board (WCAB)Finding and Order
References
1
Case No. ADJ752333
Regular
Jul 25, 2011

RICARDO RIVERA vs. COLOR SPOT NURSERIES, INC., CHARITIS, SPECIALTY RISK SERVICES

This case concerns applicant's petition for reconsideration and removal of an administrative law judge's (WCJ) order denying his objection to a replacement orthopedic QME panel. The WCJ allowed the orthopedic panel after finding the defendant had substantially complied with regulations for requesting a specialty change. The Workers' Compensation Appeals Board (WCAB) dismissed the reconsideration petition as the order was interlocutory and denied removal, finding no irreparable harm or prejudice to the applicant. The WCAB upheld the WCJ's decision, deeming the change in specialty appropriate and the defendant's compliance sufficient under the circumstances.

Workers' Compensation Appeals BoardPetition for ReconsiderationPetition for RemovalQualified Medical Evaluator (QME)Medical DirectorOrthopedicsChiropracticLabor CodeIndustrial InjuryLeft Knee
References
12
Case No. ADJ11446545
Regular
Dec 03, 2019

ROSA LOPEZ RODRIGUEZ vs. UNIVERSAL BUILDING SERVICES SUPPLY COMPANY, INSURANCE COMPANY OF THE WEST

This case concerns a dispute over the appropriate medical specialty for a Qualified Medical Evaluator (QME) panel. The applicant, Rosa Lopez Rodriguez, initially requested a chiropractic QME panel, which was issued first. The defendant objected, arguing that chiropractic was inappropriate due to the applicant's prior surgery and lack of full recovery. The Medical Unit then invalidated the chiropractic panel and issued an orthopedic surgery panel. The Workers' Compensation Appeals Board granted reconsideration, overturning the WCJ's decision. The Board held that the party who first requests a QME panel has the right to designate the specialty and that the defendant failed to provide sufficient grounds to invalidate the chiropractic panel. Therefore, the Board amended the findings to sustain the applicant's objection and affirm chiropractic as the appropriate panel specialty.

AD Rule 31.5(a)(10)AD Rule 31.5(a)(9)AD Rule 31.1(b)Labor Code section 4062Labor Code section 4062.2Qualified Medical Evaluator (QME)QME panel specialtyPetition for RemovalPetition for ReconsiderationMedical Unit determination
References
1
Case No. ADJ7578707; ADJ7578722
Regular
Jul 06, 2011

Melissa Voisenat vs. COUNTY OF FRESNO

This case involves a dispute over the specialty of a Qualified Medical Evaluator (QME) for applicant Melissa Voisenat, who claims industrial injuries as a police officer. Defendant County of Fresno seeks to remove an administrative order denying their request for an orthopedic QME panel. The Appeals Board granted removal due to an insufficient record, lacking crucial documents needed to assess compliance with QME panel selection rules. The case is returned to the trial level for further proceedings to allow parties to submit relevant evidence on the QME specialty issue.

Petition for RemovalQualified Medical Evaluator (QME) panelspecialty disputeorthopedic QMEchiropractic QMEAdministrative Director's Medical Unit (MU)EAMSrescinded ordertrial levelindustrial injuries
References
0
Case No. ADJ9127012, ADJ9127010
Regular
Aug 10, 2015

ROSA RUIZ vs. BARON HR, LLC, ZURICH AMERICAN INSURANCE COMPANY

The Workers' Compensation Appeals Board (WCAB) dismissed the defendant's Petition for Reconsideration because it sought review of a non-final order. The Board granted removal and rescinded the Finding of Fact, which determined the correct Qualified Medical Evaluator (QME) specialty was chiropractic. The matter was returned to the WCJ for further proceedings to determine the validity of QME panels and reports. This included whether the defendant was properly served and if the selected QME specialty and report were valid.

QME specialty disputePetition for ReconsiderationPetition for Removalnon-final ordersubstantive right or liabilityprocedural non-final ordersprejudicial errorirreparable harmspecific injurycumulative trauma
References
10
Case No. ADJ3155871
Regular
Sep 17, 2009

ANTO'NIO PAULO vs. SIENA IMPORTS, FIRST COMP OMAHA For ENDURANCE INSURANCE COMPANY

This case involves a dispute over the specialty of a Qualified Medical Evaluator (QME) panel. The applicant, Antonio Paulo, objected to the defendant's requested QME specialty, arguing the defendant failed to follow proper procedure by not providing supporting documentation for a specialty different from the treating physician's. The Workers' Compensation Appeals Board (WCAB) denied the defendant's petition for removal, upholding the decision to void the initial panel. The Board found the applicant's objections were timely and the defendant had not demonstrated significant prejudice.

Petition for RemovalQualified Medical EvaluatorPQME Panel SelectionMedical UnitWCAB JurisdictionSpecialty DisputePain ManagementSpinePrimary Treating Physician8 CCR 31.1
References
0
Case No. ADJ3218661 ( OAK 0339889)
Regular
Apr 09, 2009

, CHANCE ROLLINS vs. , JOHN MARTIN STABLES, INC.; AIG CLAIM SERVICES, INC.

The Workers' Compensation Appeals Board (WCAB) dismissed the defendant's Petition for Reconsideration and denied their Petition for Removal. The defendant sought to challenge an order denying their request for a new Qualified Medical Evaluator (QME) panel in a neurology specialty, arguing the chosen QME's specialty was inappropriate. The WCAB found the order at issue was not a final order and thus not subject to reconsideration. Furthermore, the WCAB determined that the defendant had previously agreed to the QME and failed to demonstrate irreparable harm or substantial prejudice to warrant removal.

Qualified Medical EvaluatorQME panelneurologyneurosurgerypain managementtreating physicianadministrative law judgepetition for reconsiderationpetition for removalinterlocutory order
References
7
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