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

Case No. 2019 NY Slip Op 04675 [173 AD3d 826]
Regular Panel Decision
Jun 12, 2019

Chavez-Lezama v. Kun Gao

The plaintiff, Miguel Chavez-Lezama, commenced an action against defendant Kun Gao for personal injuries sustained while performing construction work at Gao's one-family house. Chavez-Lezama alleged violations of Labor Law §§ 200, 240 (1), and 241 (6), and common-law negligence. Gao moved for summary judgment dismissing the complaint, arguing that as the owner of a one- or two-family dwelling, he was exempt from Labor Law §§ 240 (1) and 241 (6) liability and did not direct or control the work. The Supreme Court denied Gao's motion. On appeal, the Appellate Division, Second Department, reversed the Supreme Court's order, finding that Gao established his prima facie entitlement to judgment as a matter of law, and Chavez-Lezama failed to raise a triable issue of fact regarding Gao's direction or control over the work. Consequently, the court granted Gao's motion for summary judgment, dismissing the Labor Law and common-law negligence claims against him.

Construction accidentLabor LawOwner liabilityOne-family dwelling exemptionSummary judgmentPersonal injuryAppellate reviewSafe place to workPremises liabilityWorker fall
References
6
Case No. 2023 NY Slip Op 03489
Regular Panel Decision
Jun 28, 2023

Ramones v. 425 County Rd., LLC

Plaintiff Sandro Ramones appealed an order denying his summary judgment motion and granting summary judgment to defendants 425 County Road, LLC, and Farrell Building Company, Inc., regarding Labor Law §§ 240 (1) and 241 (6) violations. The plaintiff was injured while loading equipment onto a van after performing roofing and shingling work. The Appellate Division, Second Department, modified the order, denying the defendants' motion to dismiss the Labor Law § 240 (1) claim and affirming the denial of the plaintiff's cross-motion for summary judgment on that claim. The court found that the plaintiff's activity was ancillary to the alteration of the structure and protected under Labor Law § 240 (1), and defendants failed to show no safety device would have prevented the fall. However, the court affirmed the dismissal of the Labor Law § 241 (6) claim, finding that 12 NYCRR 23-1.7 (f) did not apply as the van's roof was not a "working level above ground."

Personal InjuryLabor LawSummary JudgmentAppellate ReviewConstruction Site SafetyElevation RisksScaffolding AccidentsWorker FallStatutory InterpretationAncillary Work
References
12
Case No. 2022 NY Slip Op 00720 [202 AD3d 433]
Regular Panel Decision
Feb 03, 2022

Galeno v. Everest Scaffolding, Inc.

Plaintiff Fidel Galeno was injured in December 2012 after falling through a sidewalk shed roof while performing façade repairs on a building. The building was owned by Elk 22 Realty LLC, net leased to 20 West, and managed by ABS Partners Real Estate, LLC (collectively, the owner defendants). Everest Scaffolding, Inc. constructed the sidewalk shed, and Schnelbacher-Sendon Group, LLC (SSG) was hired for façade repairs, subcontracting work to Ramon Construction Corporation (Ramon), plaintiff's employer. The Supreme Court denied conditional summary judgment for the owner defendants on contractual indemnification against SSG and Ramon, and granted SSG's and Ramon's motions for summary judgment dismissing contractual indemnification and common-law indemnification/contribution claims. The Supreme Court also denied Everest's motion to dismiss common-law negligence and Labor Law § 200 claims, granted dismissal of contractual indemnification claims against Everest by 20 West and ABS, and denied the owner defendants' cross-motion for conditional summary judgment against Everest. The Appellate Division modified the orders, denying SSG's, Ramon's, and Everest's motions to the extent they sought dismissal of 20 West and ABS's contractual indemnification claims against them, and otherwise affirmed. Issues of fact concerning proximate cause by Everest or Ramon remain, precluding dismissal of negligence and Labor Law § 200 claims against Everest. Common-law indemnification and contribution claims against SSG were properly dismissed due to lack of negligence or supervision by SSG, while similar claims against Ramon were precluded by the Workers' Compensation Law.

Personal InjuryPremises LiabilitySidewalk Shed AccidentContractual IndemnificationCommon-Law IndemnificationContribution ClaimsSummary Judgment MotionAppellate ReviewProximate CauseConstruction Accident
References
6
Case No. ADJ6532007
Regular
Apr 30, 2010

MANUEL CHAVEZ vs. TERRA UNIVERSAL, EMPLOYERS DIRECT CLAIMS THOU OAKS

The Workers' Compensation Appeals Board denied reconsideration of a decision in favor of applicant Manuel Chavez. The Board adopted the Administrative Law Judge's (ALJ) report, which found it more likely than not that Chavez was terminated because he filed a workers' compensation claim form. The ALJ gave great weight to Chavez's credible testimony regarding the timing of his termination and the inconsistencies in the employer's stated reasons for it. The Board affirmed the ALJ's credibility determination, leading to the denial of the defendant's petition.

Workers' Compensation Appeals BoardPetition for ReconsiderationAdministrative Law JudgeCredibility FindingGarza v. Workmen's Comp. Appeals Bd.Findings of Fact and AwardEAMSClaim FormTerminationLast Day of Work
References
1
Case No. ADJ6799286
Regular
Feb 08, 2013

OLEGARIO CHAVEZ vs. REINALDA FLORES GARCIA, FARMERS INSURANCE EXCHANGE

This Workers' Compensation Appeals Board (WCAB) case, ADJ6799286, involved a petition for reconsideration filed by Olegario Chavez. The WCAB dismissed Chavez's petition because it was both unverified and not timely filed. Even if the petition had been properly filed, the WCAB would have denied it on its merits, adopting the reasoning of the WCJ.

Petition for ReconsiderationDismissal OrderUnverified PetitionUntimely FilingWCJ ReportAdopted ReportDenied PetitionWorkers' Compensation Appeals BoardAdministrative Law JudgeLong Beach District Office
References
0
Case No. ADJ3995603 (MON 0246737), ADJ534884 (MON 0245064), ADJ4048703 (MON 0246736)
Regular
Jun 02, 2018

HERMINEGILDA CHAVEZ vs. CHIEF AUTO PARTS, AUTOZONE, INC., INSURANCE COMPANY OF WAUSAU, LIBERTY MUTUAL, CALIFORNIA INSURANCE GUARANTEE ASSOCIATION, INTERCARE INSURANCE FOR HIH INSURANCE COMPANY, CALIFORNIA INSURANCE GUARANTEE ASSOCIATION, SEDGWICK CMS, FREMONT INDEMNITY

The Workers' Compensation Appeals Board (WCAB) dismissed Herminegilda Chavez's petition for reconsideration because it was not taken from a "final" order. The WCAB explained that intermediate procedural or evidentiary decisions are not considered final. Additionally, the WCAB denied Chavez's petition for removal, as she failed to demonstrate substantial prejudice or irreparable harm, or that reconsideration would be inadequate. Therefore, the WCAB found no basis to grant extraordinary relief through removal.

Petition for ReconsiderationPetition for RemovalFinal OrderSubstantive RightThreshold IssueIntermediate Procedural OrderEvidentiary DecisionExtraordinary RemedySubstantial PrejudiceIrreparable Harm
References
9
Case No. MISC. 251
Significant
Jul 08, 2008

Ramon B. Pellicer vs.

The Appeals Board denied Ramon B. Pellicer's petition to appear as a non-attorney representative, based on his disciplinary history with the State Bar and legal precedent preventing disbarred or suspended attorneys from practicing before the WCAB.

WCABPetition to PracticeHearing RepresentativeNon-AttorneyInvoluntary Inactive EnrollmentState Bar CourtDisciplinary ChargesRules of Professional ConductBusiness and Professions CodeMoral Turpitude
References
2
Case No. ADJ1099822 (LAO 0828806)
Regular
Jan 20, 2010

CLAUDIO SOTO vs. RAMON VERDIN

The Workers' Compensation Appeals Board granted reconsideration and reversed a prior award finding serious and willful misconduct by the employer, Ramon Verdin. The Board determined that the applicant failed to meet the burden of proof required by Labor Code section 4553.1. Specifically, the evidence did not sufficiently establish that the absence of a miter saw guard was the proximate cause of the applicant's injury. Furthermore, the employer's knowledge of the safety violation or the obviousness of the dangerous condition, as required by statute, was not adequately proven on this record.

Workers' Compensation Appeals BoardSerious and Willful MisconductLabor Code Section 4553.1Safety Standard ViolationMiter Saw GuardProximate CauseIndustrial InjuryFindings and AwardReconsiderationOpinion and Order
References
0
Case No. MISC. 251
En Banc
Jul 08, 2008

Ramon B. Pellicer vs. State Bar of California

The Appeals Board denied Ramon B. Pellicer's petition to appear as a non-attorney hearing representative due to his prior disciplinary record with the State Bar, affirming that disbarred attorneys are precluded from practicing law in any capacity before the WCAB.

WCABPetition to PracticeHearing RepresentativeInvoluntary Inactive EnrollmentState Bar ActRules of Professional ConductDefaultDisciplinary ChargesPractice of LawDefrocked Attorney
References
2
Case No. ADJ9216410
Regular
Dec 28, 2020

RAMON CHACON ALCALA vs. SACRAMENTO COUNTY JAIL

This case involves a Sacramento County Jail inmate, Ramon Chacon Alcala, who claims an industrial injury to his back and groin from lifting dough in the jail bakery. Although the applicant's credibility as a historian was questioned, the Workers' Compensation Appeals Board denied the defendant's Petition for Reconsideration. The Board adopted the findings of the administrative law judge who concluded that medical evidence from examining physicians provided substantial support for an industrial injury. Despite applicant's credibility issues, the physicians' opinions on causation based on reasonable medical probability were deemed sufficient to uphold the award.

WCABPetition for ReconsiderationFindings and AwardIndustrial InjurySacramento County JailInmateBakeryHerniaBack InjuryQualified Medical Examiner
References
0
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