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

Case No. 2023-01-5358
Regular Panel Decision
Oct 27, 2023

Craig, Devontay v. Shimmick Construction Co., Inc.

Devontay Craig filed a Petition for Benefit Determination on July 20, 2021, alleging a right leg injury from June 21, 2021. Shimmick Construction authorized treatment with Dr. Todd Grebner, who determined the condition was not primarily work-related, leading to Shimmick's denial. After an initial dismissal without prejudice, Mr. Craig refiled his petition on March 24, 2023. Shimmick moved for summary judgment, arguing the claim was time-barred as Mr. Craig refiled beyond one year from the last benefit payment on October 25, 2021. The Court found Mr. Craig failed to timely refile his petition, granting Shimmick's motion and dismissing the claim with prejudice.

Workers' CompensationStatute of LimitationsSummary JudgmentDismissal with PrejudiceRight Leg InjuryCausationTimelinessPetition for Benefit DeterminationTennessee LawEmployer Liability
References
2
Case No. ADJ7935139
Regular
Jul 23, 2013

SERGIO SANCHEZ MURILLO vs. PIZZA-PASTA KITCHEN, INC.

The Workers' Compensation Appeals Board dismissed the applicant's petition for removal. This dismissal was based on the administrative law judge's (WCJ) denial of the applicant's initial petition to join the Uninsured Employers Benefits Trust Fund, finding insufficient evidence. However, the applicant subsequently refiled the petition with exhibits attached to the removal petition. The WCJ will now review this refiled petition and its exhibits on remand to act appropriately.

Petition for RemovalUninsured Employers Benefits Trust FundUEBTFWorkers' Compensation Administrative Law JudgeWCJEAMSReport and Recommendationdismissalapplicantdefendants
References
0
Case No. ADJ2215482
Regular
Oct 14, 2008

NANCY MCLEARY vs. SATURN OF THOUSAND OAKS, DCH MANAGEMENT, ZURICH NORTH AMERICA

This case concerns an applicant seeking workers' compensation for an industrial injury to her back and neck, which exacerbated her need for refills of an intrathecal opiate pump. The defendant argued the pump refills were not industrial in origin, but the Board affirmed the original award, applying the principle that if an industrial injury contributes to the need for medical treatment, the employer is responsible for the entire cost. The Board granted reconsideration solely to defer the issue of the applicant's attorney's fees pending a Supreme Court decision on a related matter.

intrathecal pumpopiate solution refillsindustrial injurypreexisting conditionmedical treatment apportionmentcure or relieveagreed medical evaluatorpain management specialistprior motor vehicle accidentapplicant testimony
References
5
Case No. ADJ7488842
Regular
Jan 09, 2013

MARLENE HERNANDEZ vs. SERGIO'S TACOS, THE HARTFORD

This case involves a lien claimant, Dr. Issac Regev, who mistakenly refiled a settled workers' compensation lien. The Workers' Compensation Appeals Board granted reconsideration of the initial dismissal and sanctions, acknowledging the refiling was due to a clerical error. While affirming the dismissal of the lien, the Board reduced the sanctions from $2,500 to $500, finding it a more appropriate penalty for the error and the resulting wasted effort. The decision emphasizes the need for improved filing processes to prevent future superfluous filings.

Workers Compensation Appeals BoardReconsiderationDismissing LienSanctionsFrivolous LienClerical ErrorCompromise and ReleaseCumulative TraumaBad Faith ActionsLabor Code Section 5813
References
0
Case No. ADJ3685938 (WCK 0066506)
Regular
Dec 02, 2014

EMMETT BOONE vs. DREYER'S GRAND ICE CREAM, FIREMAN'S FUND INSURANCE COMPANY

In this workers' compensation case, the Appeals Board affirmed a prior award finding defendant's utilization review (UR) denials for prescription refills invalid. The Board agreed with the WCJ that the UR denials were untimely because the defendant failed to communicate the decisions to the treating physician within the statutory 24-hour timeframe. Consequently, the Board found the UR invalid, allowing the WCAB to determine medical necessity based on substantial evidence. This decision upholds the applicant's right to ongoing prescription refills.

Workers' Compensation Appeals BoardUtilization ReviewReconsiderationFindings and AwardPrescription RefillsMedical TreatmentDefective DenialTimeliness RequirementsLabor Code § 4610Dubon v. World Restoration
References
8
Case No. No. 21-0797
Regular Panel Decision
Jun 16, 2023

Levinson Alcoser Associates, L.P. and Levinson Associates, Inc. v. El Pistolon II, Ltd.

The Supreme Court of Texas reversed a court of appeals' judgment concerning equitable tolling in a defective design and development lawsuit. Plaintiff El Pistolón II, Ltd. initially sued Levinson Alcoser Associates, L.P. and Levinson Associates, Inc. for negligence and breach of contract, but the suit was dismissed for a deficient certificate of merit. El Pistolón refiled, arguing that the limitations period should have been tolled during the appeal of the earlier suit. The Court clarified that equitable tolling, including "Hughes tolling" or a broader "legal impediment rule," is limited in scope and does not apply when an earlier suit is dismissed and refiled. As a result, El Pistolón's claims were deemed time-barred, and the trial court's summary judgment was reinstated.

Equitable TollingStatute of LimitationsCertificate of MeritCivil Practice and Remedies CodeDefective PleadingLegal PrecedentAppellate ReviewSummary JudgmentTexas LawConstruction Defects
References
46
Case No. 03-02-00196-CV
Regular Panel Decision
Aug 29, 2003

Heart Hospital IV, L.P. and Texas Workforce Commission v. Charles A. King

Charles A. King, an employee of Heart Hospital IV, L.P., was denied unemployment benefits by the Texas Workforce Commission (TWC) after failing a drug test. King sought judicial review, initially filing in Travis County and later refiling in Bastrop County, 125 days after the TWC's final decision. Heart Hospital and TWC challenged the refiling, arguing King missed the 14-day statutory deadline for judicial review. The district court denied TWC's plea to the jurisdiction. The Court of Appeals reversed, holding that the 14-day deadline in the labor code is a jurisdictional prerequisite, making the sixty-day tolling provision of section 16.064 and equitable tolling inapplicable. Consequently, the district court lacked jurisdiction, and the cause was dismissed.

Unemployment BenefitsJurisdictional PrerequisiteStatutory DeadlinesJudicial ReviewTexas Labor CodePlea to JurisdictionTolling ProvisionsEquitable TollingCourt of AppealsAdministrative Law
References
16
Case No. 07 Civ. 11504(WHP)
Regular Panel Decision

Chenensky v. New York Life Insurance

Plaintiff Brian Chenensky filed a putative class action against New York Life for alleged impermissible wage deductions under the New York Labor Law. Earlier, the court had dismissed his federal FLSA and NYCRR claims but denied summary judgment on the state-law NYLL claims due to factual disputes. Following the dismissal of a related case, Gold v. New York Life, for lack of federal jurisdiction and its subsequent refiling in state court, the District Court re-evaluated its supplemental jurisdiction over Chenensky's remaining state-law claims. Considering judicial economy, convenience, fairness, and comity, the Court decided to decline supplemental jurisdiction, dismissing the action without prejudice to allow refiling in state court, citing unresolved state law issues.

Supplemental JurisdictionWage DeductionsNew York Labor LawClass ActionDistrict CourtComityJudicial EconomyFairnessConvenienceSummary Judgment
References
32
Case No. 05-19154-jf
Regular Panel Decision

In Re the Bridge to Life, Inc.

The Bridge To Life, Inc. ("Bridge") filed a Chapter 11 petition for the second time, despite a prior dismissal with prejudice. The court sua sponte dismissed the second case, leading Bridge to file a motion for reconsideration or, alternatively, a stay pending appeal. Bridge argued that the bar to refiling no longer applied as the underlying state court action against it had been dismissed. The court denied Bridge's motion, ruling that the refiling violated a prior injunction and constituted a misuse of Chapter 11. The court found that Bridge's Chapter 11 filings were primarily litigation tactics to gain advantage in a two-party dispute with William Lucadamo and to avoid enforcement of a sanctions judgment, rather than for legitimate reorganization purposes. The court emphasized that Chapter 11 should not be used to frustrate non-bankruptcy forums or to avoid supersedeas bonds.

BankruptcyChapter 11Motion for ReconsiderationStay Pending AppealBad Faith FilingLitigation TacticTwo-Party DisputePrior DismissalInjunction ViolationSanctions Judgment
References
19
Case No. MISSING
Regular Panel Decision

Siegl v. New Plan Excel Realty Trust, Inc.

This dissenting opinion addresses an appeal where Sally Siegl sued New Plan Excel Realty Trust, Inc. after sustaining injuries from a fall in a parking lot. New Plan, the property owner, had hired AALCO Septic & Sewer, Inc. to repair a water main, which involved excavating and refilling the area with a 'cold patch.' A depression allegedly formed in this refilled area, causing Siegl's fall. New Plan then brought a third-party action against AALCO for common-law indemnification and contribution, alleging AALCO's negligent repair work created the hazardous condition. The Supreme Court granted AALCO's motion for summary judgment, dismissing both claims. The dissenting judge concurs with dismissing the indemnification claim due to New Plan's own negligence but argues that a triable issue of fact exists regarding AALCO's potential negligence in creating or exacerbating the dangerous depression, therefore the contribution claim should be reinstated.

Personal InjuryPremises LiabilityThird-Party ActionSummary JudgmentCommon-Law IndemnificationContribution ClaimNegligenceDangerous ConditionExcavation WorkCold Patch Repair
References
6
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