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

Case No. ADJ6807374, ADJ6807475
Regular
Apr 25, 2011

CIIRISTINE OSTRANDER vs. COUNTY OF LOS ANGELES/SHERIFF'S DEPARTMENT

This case involves an employer's failure to provide an injured employee with timely notice of modified or alternative work following a determination of permanent and stationary status. While the employee eventually returned to her regular duties, the employer did not formally offer such positions within the 60-day window mandated by Labor Code section 4658(d)(2). Consequently, the employer is not entitled to a 15% decrease in permanent disability payments. However, the Appeals Board found that awarding the employee a 15% increase would elevate form over substance, given the employee's early return to regular work. Therefore, the Board rescinded the original award of a 15% increase and modified the decision to state there is no 15% adjustment under Labor Code section 4658(d).

Workers' Compensation Appeals BoardChristine OstranderCounty of Los Angeles/Sheriff's Departmentindustrial injuryrespiratory systemasthmainternal diseasepermanent disabilitypermanent and stationary (P&S) dateLabor Code section 4658(d)
References
2
Case No. 2018 NY Slip Op 06537 [165 AD3d 667]
Regular Panel Decision
Oct 03, 2018

Matter of Heritage Mech. Servs., Inc. v. Suffolk County Dept. of Pub. Works

This case involves an appeal by Heritage Mechanical Services, Inc. (petitioner) from a judgment denying its petition to annul a determination by the Suffolk County Department of Public Works (DPW). The dispute stemmed from a general construction contract awarded to Posillico/Skanska, JV for a waste water treatment plant upgrade. Heritage was listed as a subcontractor for HVAC work, but a disagreement arose over the agreed-upon amount, with Heritage claiming a higher price for alternates not included in the initial bid figure. DPW approved Posillico's request to perform the HVAC work itself, citing Heritage's refusal as a 'legitimate construction need' under General Municipal Law § 101 (5). The Appellate Division, Second Department, affirmed the Supreme Court's judgment, finding DPW's determination was not arbitrary and capricious, affected by an error of law, or an abuse of discretion, and thus dismissed the proceeding.

Public Works ContractSubcontractor DisputeGeneral Municipal LawCPLR Article 78Administrative ReviewArbitrary and CapriciousProject Labor AgreementHVAC SubcontractBid DisputeContractual Interpretation
References
1
Case No. ADJ1950726 (MON 0361748), ADJ6963803, ADJ7198723
Regular
Mar 20, 2012

DANA BURREL vs. LONG BEACH UNIFIED SCHOOL DISTRICT, TRISTAR RISK MANAGEMENT

In three workers' compensation cases, the applicant sustained industrial injuries to her upper extremities on May 21, 2006, March 11, 2008, and July 28, 2008. The Appeals Board granted reconsideration to review the application of Labor Code section 4658(d)(2), which mandates a 15% increase in permanent disability payments when an employer fails to offer suitable work within 60 days of an injury becoming permanent and stationary. The employer stipulated to providing some medical treatment and returning the applicant to work, but failed to offer regular, modified, or alternative work for 12 months post-injury. The Board found the employer's contention of denial unsubstantiated by evidence and, following *Bontempo v. Workers' Comp. Appeals Bd.*, ruled that the 15% increase applies to all three cases.

Labor Code section 4658(d)(2)permanent disability increaseindustrial injuryright upper extremityright handright wristright shoulderright armleft wristleft hand
References
4
Case No. ADJ3584218 (AHM 0151876)
Regular
Oct 15, 2012

RACHELLE MCKEAN-ROMO vs. PLACENTIA LINDA HOSPITAL, SEDGWICK CLAIMS MANAGEMENT SERVICES, INC.

The Workers' Compensation Appeals Board granted reconsideration to address a dispute over a 15% increase in permanent disability indemnity under Labor Code section 4658(d)(2). The applicant argued this increase was warranted due to the employer's failure to offer modified or alternative work. However, the Board found the record insufficient to determine if the employer met their obligations under the statute. Consequently, the case was returned to the trial level to further develop evidence regarding the offer of alternative or modified work.

Workers' Compensation Appeals BoardPlacentia Linda HospitalSedgwick Claims Management ServicesInc.Rachelle McKean-Romoindustrial injurylow back injurypsyche injuryLabor Code section 3208.3sleep disorder
References
0
Case No. ADJ2870719 (BAK 0153342)
Regular
Sep 14, 2010

CAROLYN HANSEN vs. STATE OF CALIFORNIA DEPARTMENT OF CORRECTIONS & REHABILITATION, LAWFULLY UNINSURED, ADMINISTERED BY STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board granted reconsideration and rescinded a supplementary award. The judge had increased the applicant's permanent disability indemnity by 15% under Labor Code section 4658(d)(2) due to the employer's failure to offer suitable work. However, the Board found insufficient evidence to support this award and returned the case for further development of the record. Specifically, the Board needs evidence on whether the employer offered regular, modified, or alternative work within the statutory 60-day window and in the prescribed manner.

WCABSupplementary Findings of Fact & AwardLabor Code section 4658(d)(2)permanent disability indemnitymodified workalternative workregular workpermanent and stationary datereconsiderationsua sponte
References
2
Case No. ADJ8442625
Regular
Jul 25, 2016

PATRICIA TILLMAN vs. STATE OF CALIFORNIA, CORRECTIONS & REHABILITATION PAROLE, STATE COMPENSATION INSURANCE FUND/STATE CONTRACT SERVICES

The Workers' Compensation Appeals Board rescinded an award of increased permanent disability benefits for applicant Patricia Tillman. The Board found that while the employer did not offer modified work within 60 days of the P&S date, the applicant had returned to her regular duties, and the employer had complied with the statute's intent. The Board also amended the applicant's permanent and stationary date to March 17, 2014, based on a psychological AME's report. Finally, the Board noted that the applicant was not entitled to a discount on benefits as she had not been offered modified work and had lost time from work.

Workers' Compensation Appeals BoardReconsiderationPermanent DisabilityLabor Code Section 4658(d)Permanent and Stationary DateAgreed Medical ExaminerMedical Improvement (MMI)ApportionmentParole AgentIndustrial Injury
References
6
Case No. MISSING
Regular Panel Decision

Parrales v. Wonder Works Construction Corp.

The plaintiff, who sustained personal injuries while working in an elevator shaft used for demolition debris disposal, appealed an order from the Supreme Court, Kings County. The initial order granted the defendants' motion for reargument and, upon reargument, vacated a prior order that had granted the plaintiff summary judgment on certain Labor Law § 241 (6) claims. The appellate court modified the order, reinstating summary judgment for the plaintiff on claims predicated on 12 NYCRR 23-1.7 (a)(1), 23-1.20, and 23-2.5 (a), finding the plaintiff had made a prima facie showing of entitlement. However, the court also awarded summary judgment to the defendants, dismissing the Labor Law § 241 (6) claim based on 12 NYCRR 23-2.1 (b), concluding that this provision lacked the specificity required for such a cause of action.

Personal InjuryLabor LawSummary JudgmentDemolition WorkConstruction AccidentFalling DebrisIndustrial CodeComparative NegligenceAppellate ReviewKings County
References
11
Case No. 2015 NY Slip Op 04773 [129 AD3d 471]
Regular Panel Decision
Jun 09, 2015

Serowik v. Leardon Boiler Works Inc.

Jozef Serowik, an employee of GDT, sustained severe hand injuries while lowering a heavy tank, which was part of a boiler installation. The incident led to claims under Labor Law sections. The Supreme Court, Bronx County, initially granted Serowik partial summary judgment on liability under Labor Law § 240 (1). Defendants appealed, and the Appellate Division, First Department, modified the Supreme Court's order. The appellate court dismissed Serowik's common law negligence and Labor Law § 200 claims, and granted conditional summary judgment on common law indemnification to the defendants. However, the Appellate Division affirmed the finding of liability against defendants under Labor Law § 240 (1), determining that Leardon Boiler Works Inc. could be held liable as an agent of the owner.

Labor LawWorkplace InjurySummary JudgmentIndemnificationAppellate ReviewGravity AccidentScaffolding LawOwner LiabilityContractor LiabilityProximate Cause
References
5
Case No. 2020 NY Slip Op 02301 [182 AD3d 821]
Regular Panel Decision
Apr 16, 2020

Matter of Community, Work, & Independence, Inc. v. New York State Off. for People with Dev. Disabilities

This case involves a CPLR article 78 proceeding initiated by Community, Work, and Independence, Inc. (petitioner) to challenge a determination affirming the objection to its proposed discharge of M.D., an individual with developmental disabilities, from day habilitation services. M.D.'s parents objected to the discharge, and an administrative hearing sustained their objection, a decision later affirmed by the Commissioner of the Office for People with Developmental Disabilities. The Appellate Division, Third Department, confirmed the Commissioner's determination, finding that the burden of proof was appropriately placed on the service provider. The court concluded that substantial evidence supported the finding that discharging M.D. was not reasonable, considering his needs, the lack of suitable alternative programs, and despite the petitioner's financial concerns. The court suggested that financial issues for service providers should be addressed by seeking increased funding rather than by discharging individuals.

Developmental DisabilityHCBS WaiverDischarge ServicesAdministrative HearingBurden of ProofSubstantial EvidenceFinancial ConcernsService ProviderMedicaid FundingAutism Spectrum
References
7
Case No. ADJ3133929 (OAK 0314655) ADJ1728489 (OAK 0314656)
Regular
Feb 02, 2009

PAUL CRUM vs. CITY OF OAKLAND, Permissibly Self-Insured, JT2 INTEGRATED SERVICES

This Workers' Compensation Appeals Board case concerns an applicant's entitlement to a modified work arrangement due to an industrial injury. The applicant was awarded accommodation with a city vehicle that doesn't exacerbate his symptoms or, alternatively, a suitable work assignment. The defendant appealed, arguing this award exceeded the judge's authority by specifying a particular vehicle or assignment instead of medical treatment. The Board granted reconsideration and amended the award, affirming the applicant's right to either the modified vehicle or an attempted reassignment within his restrictions.

Workers' Compensation Appeals BoardPetition for ReconsiderationFindings and AwardFuture Medical TreatmentAccommodationIndustrial InjuryWork AssignmentMedical TreatmentWCJReport and Recommendation
References
0
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