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

Case No. 2015-2418 K C
Regular Panel Decision
May 25, 2018

Remedial Med. Care, P.C. v. Park Ins. Co.

This case involves an appeal from an order of the Civil Court concerning first-party no-fault benefits. The defendant, Park Insurance Co., sought summary judgment to dismiss the complaint filed by Remedial Medical Care, P.C., as assignee of Thomas Brown. The Civil Court initially denied the motion but found that the defendant had established timely mailing of denials. The Appellate Term modified the order, granting summary judgment to the defendant for a bill of services rendered on August 23, 2012, as it was paid according to the workers' compensation fee schedule. However, for the remaining bills, the defendant failed to prove timely mailing of IME scheduling letters, thus failing to demonstrate that the IMEs were properly scheduled or that the assignor failed to appear. Therefore, the denial of summary judgment for the remaining claims was affirmed.

Summary JudgmentNo-Fault BenefitsIndependent Medical Examination (IME)Timely MailingWorkers' Compensation Fee ScheduleAppellate TermCivil CourtDenial of ClaimFirst-Party BenefitsInsurance Law
References
3
Case No. MISSING
Regular Panel Decision

Guerrero Toro v. Northstar Demolition

Plaintiff Alexander Guerrero Toro, a pro se asbestos handler, sued NorthStar Demolition & Remediation LP under the Americans with Disabilities Act (ADA) and New York State Human Rights Law (NYSHRL), alleging failure to accommodate his carpal tunnel syndrome, wrongful termination, workplace harassment, and retaliation. After experiencing pain in his right arm, Plaintiff was placed on restricted duty, limiting his ability to perform essential job functions. Defendant provided various temporary light-duty assignments, but eventually, no suitable tasks remained due to seasonal changes and Plaintiff's ongoing limitations. Plaintiff also claimed harassment from co-workers and supervisors, and retaliation for filing administrative complaints. The court granted Defendant's motion for summary judgment, dismissing all claims, concluding that Plaintiff failed to demonstrate he could perform essential job functions with or without reasonable accommodation, or that a hostile work environment or retaliation existed based on admissible evidence. The NYSHRL claims were also dismissed, with some being jurisdictionally barred due to the election of remedies.

Americans with Disabilities ActDisability DiscriminationCarpal Tunnel SyndromeReasonable AccommodationHostile Work EnvironmentRetaliationSummary JudgmentPro Se LitigationEmployment LawNew York State Human Rights Law
References
122
Case No. MISSING
Regular Panel Decision
Nov 23, 1981

Malone v. Jacobs

This case involves an appeal by defendants Stephen and John Jacobs from a Supreme Court order denying their motion to dismiss the complaint filed by Daniel and Linda Malone. The Malones sought damages for personal injuries Daniel sustained in an automobile accident with Stephen Jacobs, with both men being volunteer firemen responding to an alarm. The appellate court determined that both were acting in the line of duty, making the Volunteer Firemen’s Benefit Law their exclusive remedy. Consequently, the order was reversed, granting defendants leave to amend their answer to assert this exclusive remedy defense, and summary judgment was granted, leading to the dismissal of the Malones' complaint. The court also affirmed that John Jacobs, as the vehicle owner, could rely on the same defense due to vicarious liability.

Volunteer Firemen's Benefit LawExclusive RemedySummary JudgmentAffirmative DefenseAutomobile AccidentPersonal InjuryLoss of ConsortiumLine of DutyVicarious LiabilityMotion to Dismiss
References
6
Case No. MISSING
Regular Panel Decision

Hector Garza v. Zachry Construction Corporation, Zachry Industrial, Inc., Gilbert Morales and Anthony Rodriguez

Hector Garza, a DuPont operator, was injured in a railcar accident involving Zachry Construction Corp. employees, Gilbert Morales and Anthony Rodriguez. Garza received workers' compensation benefits from DuPont and subsequently sued Zachry, Morales, and Rodriguez for negligence. The defendants moved for summary judgment, asserting that Garza's claims were barred by the workers' compensation exclusive remedy under Texas Labor Code section 408.001, which applies to subcontractors via section 406.128. The trial court granted a take-nothing summary judgment. On appeal, Garza argued that Zachry's employees were not DuPont's "deemed employees" for exclusive remedy purposes and that applying the bar violated the Texas Constitution's open courts provision. The appellate court affirmed the trial court's judgment, finding that the contract between DuPont and Zachry did not negate the "deemed employer" status for workers' compensation purposes and that the workers' compensation benefits constituted an adequate quid pro quo for the relinquishment of common-law claims, thus not violating the open courts guarantee.

Workers' Compensation ImmunityExclusive Remedy BarSubcontractor LiabilityTexas Open Courts ProvisionLabor Code InterpretationSummary Judgment AppealNegligence ClaimsDeemed Employer StatusFellow Employee DoctrineContractual Agreement
References
19
Case No. ADJ4415679 (OAK 0259031) ADJ2701101 (WCK0050594)
Regular
May 10, 2010

Stanley Sanders vs. REMEDY INTELLIGENT STAFFING, CALIFORNIA INSURANCE GUARANTEE ASSOCIATION for RELIANCE NATIONAL INSURANCE COMPANY, OREGON STEEL MILLS, INC. dba NAPA PIPE

The Workers' Compensation Appeals Board reversed a judge's decision, ruling that Napa Pipe, a self-insured special employer, is liable for applicant Stanley Sanders' workers' compensation benefits. Despite an agreement between the general employer (Remedy Temp) and Napa Pipe attempting to limit liability to Remedy Temp's insurer (Reliance), Napa Pipe's joint and several liability as a special employer cannot be contractually eliminated. Because Napa Pipe's self-insurance was not excluded for special employees and constitutes "other insurance" under Insurance Code § 1063.1(c)(9), CIGA is relieved of its obligation to provide benefits following Reliance's insolvency. Therefore, Napa Pipe must now provide all workers' compensation benefits and administer the claim.

Workers' Compensation Appeals BoardStanley SandersRemedy Intelligent StaffingCalifornia Insurance Guarantee AssociationReliance National Insurance CompanyOregon Steel MillsNapa PipeADJ4415679ADJ2701101Opinion and Decision After Reconsideration
References
24
Case No. ADJ1575513 (ANA 0339482) ADJ4199991 (ANA 0342546)
Regular
Jun 16, 2017

ELIZABETH ORTEGA vs. REMEDY TEMPORARY SERVICES, RELIANCE NATIONAL INSURANCE, In Liquidation, Adjusted By INTERCARE INSURANCE COMPANY, J.C. PENNEY, LIBERTY MUTUAL INSURANCE COMPANY

This case involves Applicant Elizabeth Ortega's workers' compensation claim against Remedy Temporary Services, Reliance National Insurance, J.C. Penney, and Liberty Mutual Insurance Company. The Workers' Compensation Appeals Board reviewed the petition for reconsideration filed by one of the parties. After careful consideration of the record and the report of the workers' compensation judge, the Board denied the petition.

Workers Compensation Appeals BoardPetition for ReconsiderationWorkers' Compensation Administrative Law Judgedenial of reconsiderationRemedy Temporary ServicesReliance National InsuranceIntercare Insurance CompanyJ.C. PenneyLiberty Mutual Insurance CompanyElizabeth Ortega
References
0
Case No. MISSING
Regular Panel Decision

Owens Corning v. Carter

This case involves consolidated direct appeals to the Texas Supreme Court concerning the constitutionality of several sections of the Texas Civil Practice and Remedies Code: 71.031(a)(3) (borrowing statute), 71.051 (forum non conveniens), and 71.052(b) and (c) (asbestos claim dismissal provisions). Alabama plaintiffs challenged these sections on various constitutional grounds, including retroactivity, open courts, privileges and immunities, equal protection, and special laws. The trial court's judgment was affirmed regarding the constitutionality of section 71.051, which does not violate the Privileges and Immunities Clause. However, the Supreme Court reversed the trial court's findings on sections 71.031(a)(3), 71.052(b), and 71.052(c), holding that they do not violate any asserted constitutional provisions and instructed the trial court to vacate related injunctions.

Constitutional LawTexas Civil Practice and Remedies CodeAsbestos LitigationForum Non ConveniensBorrowing StatuteRetroactivityPrivileges and Immunities ClauseEqual Protection ClauseSpecial LawsStatutory Interpretation
References
55
Case No. ADJ3388315 (SBR 0294441) ADJ683842 (SBR 0340933)
Regular
Jul 22, 2014

Marvin Camacho vs. Western Metal Lathe, Sompo Japan Insurance Company, Broadspire, Remedy Temp, Reliance National, California Insurance Guarantee Association, Williams Furnace Company, St. Paul Fire & Marine, Kimco Staffing, Liberty Mutual Insurance

The Workers' Compensation Appeals Board denied Williams Furnace Company's petition for reconsideration and granted Sompo Japan Insurance Company's petition. The Board affirmed the original award for Marvin Camacho's neck and back injuries sustained while employed by Remedy Temp and Western Metal Lathe, as well as prior injuries to his cervical and lumbar spine from Williams Furnace Company. Issues of temporary total disability, additional attorney's fees, and other matters were deferred for further development at the trial level. Liberty Mutual Insurance, carrier for Kimco Staffing, was dismissed from the case.

WORKERS' COMPENSATION APPEALS BOARDWESTERN METAL LATHESOMPO JAPAN INSURANCE COMPANYBROADSPIREREMEDY TEMPRELIANCE NATIONALCALIFORNIA INSURANCE GUARANTEE ASSOCIATIONWILLIAMS FURNACE COMPANYST. PAUL FIRE & MARINEKIMCO STAFFING
References
0
Case No. MISSING
Regular Panel Decision

Davis v. Dallas County Schools

Appellant Sheila Davis sued Dallas County Schools (DCS) for retaliatory discharge after her employment was terminated following a workers' compensation claim. DCS filed a plea to the jurisdiction, asserting Davis failed to exhaust administrative remedies, which the trial court granted. On appeal, Davis contested the necessity and adequacy of administrative remedies, arguments for tolling the grievance period, and a violation of her constitutional right to open courts. The appellate court determined that DCS's grievance process indeed covered retaliatory discharge claims, necessitating exhaustion of remedies. Consequently, the court affirmed the trial court's judgment, finding Davis had not exhausted her administrative remedies and had waived her constitutional argument on appeal.

Retaliatory DischargeAdministrative RemediesExhaustion DoctrinePlea to JurisdictionSubject Matter JurisdictionGrievance ProceduresTermination of EmploymentTexas Labor CodePublic EmployeesOpen Courts Provision
References
11
Case No. 03-15-00401-CV
Regular Panel Decision
Aug 13, 2015

in Re Xerox Corporation and Xerox State Healthcare, LLC F/K/A ACS State Healthcare, LLC

Relators Xerox Corporation and Xerox State Healthcare, LLC seek a writ of mandamus to overturn trial court orders that struck their third-party claims and denied leave to designate responsible third parties. The underlying suit is a Texas Medicaid Fraud Prevention Act (TMFPA) enforcement action by the State of Texas against Xerox for misrepresenting its prior authorization review process for orthodontia services, leading to unauthorized Medicaid payments. The State argues the TMFPA is a remedial public welfare statute, not tort-based, and therefore Chapter 33 of the Civil Practice & Remedies Code (CPRC) on proportionate responsibility does not apply. The State asserts it seeks civil remedies and penalties from Xerox for its independent unlawful acts, not apportionable damages, and that Xerox has an adequate remedy on appeal.

Medicaid FraudTexas LawMandamusCivil ProcedureStatutory InterpretationState EnforcementPrior AuthorizationHealthcare LitigationTort LawProportionate Responsibility
References
98
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