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

Case No. 2007 NY Slip Op 30531(U)
Regular Panel Decision
Apr 05, 2007

Schirmer v. Athena-Liberty Lofts, LP

This case is an appeal from an Order of the Supreme Court, New York County, regarding a personal injury action. The plaintiff, a worker at a construction site, sustained injuries, leading to the site owner, Lofts, settling the claim after being found liable under Labor Law § 240 (1). Lofts then pursued indemnity claims against lighting contractor HP and the plaintiff's employer, Burgess. The Appellate Court modified the lower court's decision, vacating the finding that Lofts' settlement amount was reasonable due to Lofts' failure to properly demonstrate reasonableness and its mischaracterization of waiver arguments by HP and Burgess. The Court also affirmed the denial of HP's motion for summary judgment, citing unresolved factual issues concerning inadequate lighting as a cause of the accident.

Personal InjuryConstruction Site AccidentSummary JudgmentIndemnity ClaimLabor Law § 240(1)Appellate DivisionThird-Party ActionSettlement ReasonablenessCross ClaimsInadequate Lighting
References
4
Case No. MISSING
Regular Panel Decision

In re S.H.

The Onondaga County Department of Social Services filed a motion requesting that reasonable efforts to reunite a child, born in August 2002 and removed from home in February 2003, with his parents were not required. The father had been convicted of a sex offense against a half-sibling, and his parental rights to another half-sibling were terminated. Both parents were found to have neglected, severely abused, and repeatedly abused the subject child. The mother admitted knowing about the sexual abuse but failed to intervene. The court found that the Department met its burden of proof by clear and convincing evidence that the parents subjected the child to aggravating circumstances and failed to demonstrate that reunification was in the child's best interests. Consequently, the motion to dispense with reunification efforts was granted.

Child NeglectSevere AbuseRepeated AbuseParental Rights TerminationSexual OffenseAggravated CircumstancesFamily Court ActSocial Services LawReunification EffortsFoster Care
References
2
Case No. ADJ7112948
Regular
Mar 30, 2017

LYLE BYNUM vs. VALLEJO TRANSIT, ACE AMERICAN INSURANCE, BROADSPIRE

The Workers' Compensation Appeals Board (WCAB) granted reconsideration of a prior award. The Board issued a Notice of Intention to Impose Sanctions against the defendant's attorney and insurance company for alleged bad faith actions. These actions included filing a petition for reconsideration with inaccurate and unsupported references to evidence, misrepresenting medical opinions, and asserting meritless contentions. The WCAB is considering sanctions of up to $2,000 and reasonable expenses due to these alleged violations of labor code and board rules.

Workers' Compensation Appeals BoardPetition for ReconsiderationSanctionsLabor Code § 5813Cal. Code Regs. tit. 8 § 10561Findings and AwardWCJBus DriverBack InjuryLeft Lower Extremity Injury
References
0
Case No. ADJ4673406 (ANA 0403334) ADJ4233924 (ANA 0376527)
Regular
Sep 29, 2009

Joseph Vella vs. Hitchcock Automotive, State Compensation Insurance Fund

This case concerns a dispute over the reasonableness of a lien claimant's billing for outpatient surgery services. The Workers' Compensation Appeals Board granted reconsideration and rescinded the original award, finding the Administrative Law Judge (ALJ) erred by concluding the lien claimant met its burden based solely on its usual billing practices without a proper analysis of reasonableness. The Board remanded the case to the ALJ to determine a reasonable fee considering all evidence, including the lien claimant's and defendant's submissions, as outlined in *Kunz* and *Tapia*. The decision emphasizes that the lien claimant bears the affirmative burden to prove the reasonableness of its fee.

Kunz doctrinelien claimantreasonable feerebuttal evidenceTapiabillingmedical treatmentoutpatient surgeryinpatient hospitalDRG
References
5
Case No. 2007 NY Slip Op 32865(U)
Regular Panel Decision

Pomahac v. TrizecHahn 1065 Avenue of the Americas, LLC

The plaintiff slipped and fell in a building lobby due to a wet floor and subsequently sued the building manager (TrizecHahn) and maintenance company (ABM) for negligence, alleging a failure to place sufficient mats. Defendants moved for summary judgment, arguing they took reasonable precautions by deploying two mats, a caution sign, and having an employee mop. The Supreme Court initially denied the defendants' motions on reargument. However, the appellate court reversed, granting summary judgment to the defendants, stating their actions constituted reasonable precautions as a matter of law. The court also held that failure to adhere to an internal policy for mat placement does not automatically equate to negligence if that policy's standard exceeds reasonable care. A dissenting opinion argued that a triable issue of fact existed concerning the reasonableness of precautions given recurring hazardous conditions and insufficient mat coverage.

Summary JudgmentNegligencePremises LiabilityWet FloorBuilding MaintenanceReasonable Care StandardInternal PolicySlip and FallTerrazzo FloorAppellate Division
References
24
Case No. MISSING
Regular Panel Decision

Vinokur v. Sovereign Bank

Plaintiff Faina Vinokur sued Sovereign Bank for employment discrimination based on disability (rheumatoid arthritis), age (born 1954), and national origin (Russian), under the New York State Executive Law and New York City Human Rights Law. She also alleged failure to reasonably accommodate her disability and retaliatory termination. The defendant moved for summary judgment. The court found that plaintiff failed to establish a prima facie case for age and national origin discrimination, or that the bank's reason for termination (violation of Bank Secrecy Act policies regarding suspicious transactions) was a pretext for discrimination. Regarding disability discrimination, the court concluded that the plaintiff was reasonably accommodated and that her termination was not linked to her disability. The court also dismissed the retaliation claim, finding that while there was temporal proximity between her accommodation request and termination, the bank had a legitimate, non-discriminatory reason for her discharge that the plaintiff failed to show was pretextual. Therefore, the defendant's motion for summary judgment was granted in its entirety.

Employment DiscriminationSummary JudgmentDisability DiscriminationAge DiscriminationNational Origin DiscriminationRetaliationReasonable AccommodationBank Secrecy Act ViolationsFinancial TransactionsPrima Facie Case
References
59
Case No. ADJ6845087
Regular
Feb 27, 2017

DENNIS DEMARCO vs. PACIFIC BELL TELEPHONE COMPANY, SEDGWICK CMS

The Workers' Compensation Appeals Board denied the defendant's petition for reconsideration in the case of Dennis Demarco. The defendant failed to meet its burden of proof for apportionment because the medical opinions presented were not sufficiently reasoned or based on reasonable medical probability. The Board adopted the WCJ's reasoning, which found the opinions of the agreed medical evaluators regarding industrial causation for sleep disorders to be persuasive.

ApportionmentMedical OpinionSubstantial EvidenceReasonable Medical ProbabilitySpeculativePertinent FactsAdequate ExaminationIndustrial CausationSleep DisordersAgreed Medical Evaluator (AME)
References
7
Case No. POM 263315, ANA 311660, ANA 322880
Regular
Jun 04, 2008

Marta Zarate vs. Blue Banner Company, State Compensation Insurance Fund

The Appeals Board granted reconsideration of a WCJ's decision that allowed a lien claim for outpatient surgery services in full, finding that the record lacked substantial evidence to prove the reasonableness of the fee. The Board rescinded the decision and returned the case to the trial level for further development of the record, emphasizing that the lien claimant bears the burden of proving the reasonableness of its charges. The parties are to present evidence consistent with the *Kunz* decision to establish a reasonable fee for the services.

KunzOfficial Medical Fee Schedulelien claimantreasonable feeoutpatient surgery centerburden of proofprima facie caseusual feegross disproportionateevidentiary record
References
10
Case No. ADJ360272 (LAO 0753159)
Regular
Dec 02, 2011

RAMON ARMIENTA vs. MERTZ/DEL AMO MOBILE PARK, CALIFORNIA INSURANCE GUARANTEE ASSOCIATION, BROADSPIRE, A CRAWFORD COMPANY, SUPERIOR NATIONAL INSURANCE COMPANY

This case involves a workers' compensation appeal where the defendant challenges the WCJ's award of lien claims for medical services. The defendant argues that the lien claimants failed to meet their burden of proof to establish the reasonableness of their fees, as required by law. The Appeals Board granted reconsideration, finding that the WCJ erred by not requiring the lien claimants to prove the reasonableness of their charges. Consequently, the case is remanded for further proceedings to determine the reasonableness of the lien claimants' claims.

Workers Compensation Appeals BoardCalifornia Insurance Guarantee AssociationSuperior National Insurance CompanyLiquidationMertz Del Amo Mobile Home ParkRamon ArmientaLien claimantsReasonableness of feesBurden of proofTapia v. Skill Master Staffing
References
5
Case No. ADJ1634986
Regular
Sep 10, 2013

REGINA CAMACHO vs. RIO SCHOOL DISTRICT, YORK INSURANCE SERVICES

This Workers' Compensation Appeals Board decision denies a lien claimant's petition for reconsideration. The lien claimant, Pueblo Surgery Center, failed to meet its burden of proof to establish the reasonableness of its $18,940.00 surgical charges. The Board adopted the WCJ's reasoning that Pueblo's submitted exhibits lacked necessary substantiation and were insufficient to prove their charges were reasonable. Therefore, the denial of reconsideration stands, upholding the original determination regarding the lien claim.

Workers' Compensation Appeals BoardPetition for ReconsiderationLien ClaimantReasonableness of ChargesOutpatient Surgery CenterBillingDeclarations Under Penalty of PerjuryComparative BillingBurden of ProofIndependent Bill Review
References
4
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