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

Case No. G072 9015
Regular Panel Decision
Apr 25, 2024

Matter of Lozowski v. The Wiz

Claimant Shannon D. Crawford sustained a back injury on June 29, 2022, while working for the Village of Sidney. A Workers' Compensation Law Judge previously established an average weekly wage and awarded benefits. The employer, Village of Sidney, and their carrier, New York Municipal Insurance Reciprocal, appealed, contending the average weekly wage was incorrectly calculated by including wages from a second, dissimilar concurrent employment under WCL § 14(3). The Board Panel found that the Workers' Compensation Law Judge erred in combining wages from dissimilar employments under WCL § 14(3). Consequently, the Board Panel reversed the prior decision regarding the average weekly wage and restored the case to the trial calendar for recalculation of the average weekly wage and further proceedings on claimant's attachment to the labor market and degree of disability.

Workers' Compensation Law § 14(3)Average Weekly WageConcurrent EmploymentWage CalculationBoard PanelReversalTrial CalendarLabor MarketDisability Assessment
References
5
Case No. CA 10-02172
Regular Panel Decision
Mar 25, 2011

NEW YORK SCHOOLS INSURANCE RECIP, MTR. OF

The petitioner, New York Schools Insurance Reciprocal, appealed an order from the Supreme Court, Erie County, which denied its petition for a permanent stay of arbitration. Respondent Patricia Armitage sought arbitration after the petitioner denied her claim for no-fault insurance benefits. The court affirmed the lower court's decision, concluding that the dispute involving the insurer's liability to pay first-party benefits is a matter for arbitration under Insurance Law § 5106 [b]. The court also rejected the petitioner's contention that the offset for workers' compensation benefits exceeding the monthly limit is not arbitrable and that the denial of a stay of arbitration denied its right to a loss-transfer claim from proposed additional respondents.

No-fault insuranceArbitrationWorkers' compensation offsetFirst-party benefitsAppellate reviewInsurance LawStay of arbitrationLoss-transfer claim
References
5
Case No. MISSING
Regular Panel Decision
May 06, 2015

Matter of Miniter

This case involves a reciprocal disciplinary proceeding against attorney Francis Anthony Miniter in New York, based on a seven-year suspension imposed by the Superior Court of Connecticut. The Connecticut court found Miniter guilty of multiple violations of the Connecticut Rules of Professional Conduct (CRPC), including lack of diligence, failure to communicate, mishandling of client funds, and failure to pay judgments. Miniter challenged the imposition of reciprocal discipline in New York, citing due process violations and infirmity of proof in the Connecticut proceedings, as well as claiming the discipline was too harsh. A Special Referee in New York found that Miniter failed to sustain his burden of proof for these defenses. The New York Appellate Division, Second Department, confirmed the Special Referee's report, finding no lack of due process or infirmity of proof, and granted the application for reciprocal discipline. Consequently, Francis Anthony Miniter was suspended from practicing law in New York for five years, conditioned on his reinstatement in Connecticut.

Attorney DisciplineReciprocal DisciplineProfessional MisconductSuspension from PracticeDue ProcessGrievance CommitteeConnecticut Rules of Professional ConductClient FundsLack of DiligenceFailure to Communicate
References
9
Case No. ADJ3543960 (LAO 0789656) ADJ1691548 (LAO 0789657)
Regular
Mar 17, 2017

Patricia Soto vs. Mayfair Plastics, California Insurance Guarantee Association, INTERCARE INSURANCE SERVICES, Pacific National Insurance Company, Highlands Insurance Company

This case involves CIGA's petition for removal after a workers' compensation judge stayed CIGA's contribution claim against Highlands Insurance Company, which is in Texas receivership. The Appeals Board granted removal, rescinded the stay, and returned the matter for further proceedings. The Board found the judge lacked jurisdiction to stay the petition based solely on Texas law without determining if Texas is a "reciprocal state" under the Uniform Insurers Liquidation Act. The Board's review indicated Texas law meets some, but not all, UILA criteria for reciprocal status, leaving the issue unresolved.

CIGAHighlands Insurance CompanyUniform Insurers Liquidation ActUILAreciprocal statereceivershipliquidationPetition for ContributionPetition for Removalstay of proceedings
References
7
Case No. ADJ8073837
Regular
Nov 17, 2015

Sean Love vs. Tampa Bay Buccaneers

This case concerns whether the Tampa Bay Buccaneers are exempt from California's workers' compensation laws for an injury sustained by a former player. The WCJ initially ruled against the Buccaneers, finding that Florida's reciprocity statute, which would allow for an exemption under Labor Code § 3600.5(b), was not in effect at the time of the player's work in California. The Appeals Board affirmed the WCJ's decision, holding that the conditions for exemption must exist at the time of injury and Florida's law cannot retroactively apply to alter California's jurisdiction. A dissenting opinion argued that the reciprocity statute's validity at the time of claim filing, not injury, should determine exemption, citing a prior Appeals Board case.

Labor Code 3600.5(b)extraterritorial provisionsreciprocity statuteFlorida Statute 440.094self-insuredcumulative injurytemporary employmentWorkers' Compensation Appeals BoardWCAB jurisdictionexclusive remedy
References
3
Case No. MISSING
Regular Panel Decision

Bianco v. Board of Trustees of Local 816 Labor & Management Pension Trust

The plaintiff, an employee between 1952 and 1975 under the jurisdictions of Local 816, Local 852, and Local 202 of the International Brotherhood of Teamsters, sought disability pension payments from their respective pension funds after becoming totally disabled in 1975. The action, brought under ERISA, involved the interpretation of 'National Reciprocal Agreement' and 'Local Reciprocal Agreement' which aim to provide pensions for members whose employment spans multiple local unions. The defendants denied the plaintiff's application, arguing ineligibility due to 'break in service' provisions and the interpretation of 'related plans.' The court found no genuine issues of material fact and concluded that the plaintiff met all eligibility requirements under the plans, including the terminal Local 202 plan, for partial or pro rata pensions. Consequently, summary judgment was granted in favor of the plaintiff.

Employee Retirement Income Security ActERISAPension BenefitsDisability PensionSummary JudgmentReciprocal AgreementTeamstersLocal UnionsService CreditsPlan Interpretation
References
5
Case No. MISSING
Regular Panel Decision

Operative Plasterers & Cement Masons International Ass'n Local 202 v. Board of Trustees of the Plastering Industry Welfare & Pension Trust Funds

This case addresses a dispute between two union locals, Local 202 and Local 60, both affiliated with the Operative Plasterers and Cement Masons International Association. Following Local 60's termination of a reciprocal agreement that facilitated the exchange of benefit contributions for members working outside their home jurisdiction, Local 202 sued, alleging violations of the Labor Management Relations Act (LMRA) and ERISA. The court found that Local 60's refusal to transfer contributions created a 'structural defect' in its benefit plans, which prevented Local 202 members from receiving benefits earned by their labor within Local 60's jurisdiction. Citing the 'sole and exclusive benefit' provision of the LMRA, the court concluded that reciprocity was legally required to prevent unjust enrichment. Consequently, the court granted Local 202's motion for summary judgment and denied Local 60's.

Union DisputeBenefit FundsEmployee BenefitsReciprocal AgreementLabor Management Relations ActERISAStructural DefectSummary JudgmentUnjust EnrichmentInter-union Agreement
References
6
Case No. 2018 NY Slip Op 03468 [161 AD3d 132]
Regular Panel Decision
May 10, 2018

Matter of Machado

This case involves reciprocal discipline against attorney Esmeralda Machado. The Attorney Grievance Committee for the First Judicial Department sought to discipline Machado based on a New Jersey Supreme Court order permanently barring her from appearing pro hac vice due to unauthorized practice of law, dishonesty, and conduct prejudicial to the administration of justice. Machado had repeatedly failed to pay required fees, continued to practice in New Jersey despite her pro hac vice admission terminating, misused another attorney's letterhead, and made false statements in a divorce proceeding. The New York Appellate Division, First Department, granted the motion for reciprocal discipline, suspending Machado from the practice of law in New York for two years, effective June 11, 2018. The court found her misconduct in New Jersey would also constitute misconduct in New York.

Attorney MisconductUnauthorized Practice of LawReciprocal DisciplineProfessional EthicsSuspensionNew Jersey Disciplinary ProceedingsFalse StatementsFraudDishonestyAppellate Division First Department
References
10
Case No. 2022 NY Slip Op 04223 [208 AD3d 77]
Regular Panel Decision
Jun 30, 2022

Matter of Faillace

This case concerns reciprocal discipline against attorney Michael Faillace, who was admitted to practice law in the First Judicial Department in 1984. The Attorney Grievance Committee for the First Judicial Department sought a two-year suspension for Faillace, based on discipline imposed by the United States District Court for the Southern District of New York. Faillace was charged with serious professional misconduct, including underpaying clients' monies in violation of court orders, making misrepresentations during an investigation, and refusing to honor clients' decisions to settle claims. These actions violated several Rules of Professional Conduct. Faillace admitted to all charges and consented to a two-year suspension, which was implemented by the Southern District Court in November 2021. The Appellate Division, First Department, granted the Committee's motion, imposing a two-year reciprocal suspension effective August 1, 2022, emphasizing the significant weight given to sanctions imposed by the initial jurisdiction and the consistency with prior disciplinary actions for similar misconduct.

Attorney misconductProfessional ethics violationLawyer suspensionReciprocal disciplineClient funds misappropriationMisrepresentation to tribunalFailure to abide by client settlement decisionAttorney Grievance CommitteeAppellate DivisionSouthern District of New York
References
7
Case No. MISSING
Regular Panel Decision

Luxenberg v. Jericho Atrium Associates, Inc.

Marcy Luxenberg, a plaintiff in a personal injury action against Jericho Atrium Associates, Inc. for a slip and fall, sought a protective order against the defendant's request for an examination by an occupational and rehabilitation therapist, Dr. Ehrenreich. The plaintiff argued that CPLR 3121 restricts such examinations to physicians. Justice Bernard F. McCaffrey, presiding in a trial court within the Second Department, noted the conflicting precedents across Appellate Division departments, with the First, Third, and Fourth Departments generally limiting examinations to physicians, while the Second Department allowed non-physician experts under specific conditions, such as for psychological injuries or when reciprocity is established. However, the court found that the plaintiff's injuries were primarily orthopedic and neurological, and she had already agreed to examinations by medical doctors. The defendant failed to prove the inadequacy of these existing examinations or a compelling need for reciprocity, as the plaintiff had not yet designated her own vocational expert. Consequently, the court granted the plaintiff's protective order, denying the defendant's request for examination by Dr. Ehrenreich, but allowed the defendant to renew the motion if the plaintiff later retains a vocational expert.

Personal InjurySlip and FallDiscoveryCPLR 3121Non-Physician ExaminationVocational RehabilitationOccupational TherapyProtective OrderInter-Departmental ConflictSecond Department Precedent
References
10
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