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

Case No. 2019 NY Slip Op 06054
Regular Panel Decision
Aug 06, 2019

Wilder v. Fresenius Med. Care Holdings, Inc.

Plaintiff Nicholas Wilder, suffering from end-stage renal disorder, sued Fresenius Medical Care Holdings, Inc. and its subsidiary, Avantus Renal Therapy New York LLC, after they notified him that his dialysis care would be terminated due to disruptive behavior. Wilder sought an injunction to prevent the termination of his life-sustaining dialysis treatment. The Supreme Court, New York County, denied his request for an injunction and vacated a previously granted temporary restraining order (TRO). The Appellate Division, First Department, modified the lower court's order, reversing the denial of the injunction and vacating of the TRO, reinstating the TRO pending a hearing on Wilder's injunction request. The appellate court found that the motion court abused its discretion by vacating the TRO and not holding a hearing on the preliminary injunction, given the substantial factual disputes regarding Wilder's behavior and the defendants' compliance with federal regulations for patient discharge. However, the Appellate Division affirmed the denial of Wilder's request to proceed anonymously and seal records.

Dialysis TreatmentPatient DischargeTemporary Restraining OrderPreliminary InjunctionIrreparable HarmDisruptive Patient BehaviorFederal RegulationsRight to CareAppellate ReviewSealing Records
References
6
Case No. ADJ10465483
Regular
Oct 31, 2018

SONIA IBANEZ JIMENEZ (Dec'd) vs. DVA RENAL HEALTHCARE, INC. DAVITA DIALYSIS, NEW HAMPSHIRE INSURANCE COMPANY, administered by SEDGWICK CMS

This case involves a Petition for Removal filed by an unnamed petitioner concerning the death of Sonia Ibanez Jimenez. The Workers' Compensation Appeals Board (WCAB) denied the petition. Removal is an extraordinary remedy granted only upon a showing of substantial prejudice or irreparable harm. The WCAB found that the petitioner failed to demonstrate such prejudice or that reconsideration would be an inadequate remedy. Therefore, the petition for removal was denied.

Petition for RemovalWorkers' Compensation Appeals BoardSubstantial PrejudiceIrreparable HarmReconsiderationWCJ reportExtraordinary RemedyADJ10465483DVA Renal HealthcareDavita Dialysis
References
2
Case No. ADJ7318651
Regular
Jan 12, 2012

JERRY CHAVEZ, Jr. vs. CITY OF VERNON

This case concerns a police officer diagnosed with renal cell carcinoma who sought workers' compensation benefits under Labor Code section 3212.1's cancer presumption. The applicant presented evidence of industrial exposure to known carcinogens such as diesel exhaust and benzene. The defense failed to rebut the presumption by failing to present evidence that the primary cancer site was identified and that the identified carcinogen was not reasonably linked to the cancer. The Appeals Board affirmed the judge's findings, denying the defendant's petition for reconsideration.

Workers' Compensation Appeals BoardCity of VernonJerry Chavez Jr.Petition for ReconsiderationFindings and Ruling and Awardcancer presumptionLabor Code section 3212.1industrial exposurecarcinogenic substancesWCJ
References
7
Case No. ADJ8925923
Regular
Feb 23, 2016

TERRY GIBBS vs. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION PAROLE AND COMMUNITY SERVICES, STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board denied Terry Gibbs' petition for reconsideration. The Board adopted the Administrative Law Judge's report, which concluded that Labor Code Section 4664(c)(1)(G) legally capped Gibbs' permanent disability award. This cap applied because Gibbs had a prior award for a different injury, and the current renal system injury falls under a category limited by the statute. The Board cannot declare a statute unconstitutional and must follow it until an appellate court rules otherwise.

Workers' Compensation Appeals BoardPetition for ReconsiderationLabor Code section 4664(c)(1)(G)Constitutional protectionsStatute unconstitutionalappellate courtcumulative injuryrenal systemAgreed Medical ExaminerWhole Person Impairment
References
2
Case No. ADJ8218969
Regular
Feb 05, 2015

JOSE CARRILLO (Deceased) ELVIRA CARRILLO (Widow) vs. ESTERLINE TECHNOLOGIES CORPORATION, ARCH INSURANCE, Administered by ESIS

The Workers' Compensation Appeals Board granted reconsideration of a taken nothing order concerning the death claim of Jose Carrillo, who died of renal cell carcinoma. The initial decision found the widow failed to prove her husband's cancer was industrially caused by toxic exposure during his employment. The Board found the Qualified Medical Evaluator's opinion equivocal and the record insufficient to determine the extent of the decedent's exposure to carcinogens. Therefore, the case was returned to the trial judge for further development of the record regarding chemical exposure and a new determination of industrial causation.

Workers' Compensation Appeals BoardElvira CarrilloJose CarrilloEsterline Technologies CorporationArch InsuranceESISADJ8218969Petition for ReconsiderationFindings and Ordertaken nothing order
References
0
Case No. MISSING
Regular Panel Decision

Gnoj v. City of New York

The plaintiff, a 65-year-old deceased kitchen worker, recovered a $135,000 verdict for personal injuries due to medical malpractice (failure to diagnose renal tuberculosis) at Bellevue Hospital. The defendant, City of New York, appealed citing untimely notice of claim, erroneous admission of expert testimony, and an excessive verdict. The court found the notice of claim's timeliness a jury question but deemed the verdict excessive and the admission of Dr. Wershub's testimony, an expert initially retained by the defendant, as prejudicial error. The judgment was reversed and a new trial directed.

Medical MalpracticeExpert Witness TestimonyAdmissibility of EvidenceTimeliness of Notice of ClaimGeneral Municipal LawRenal TuberculosisJury Verdict ExcessiveNew TrialAppellate ReviewPretrial Settlement Conference
References
6
Case No. ADJ9511844
Regular
Jan 06, 2023

KWAKU AGYEIFOSU vs. BALDY VIEW ROP, YORK RISK SERVICES

The Workers' Compensation Appeals Board denied the applicant's petitions for reconsideration. One petition was dismissed as untimely, as it sought to challenge a 2017 decision nearly six years later. The other petition was denied because the applicant failed to prove his claims of industrial injury to the lumbar spine and entitlement to temporary disability, and a discrimination claim under Labor Code section 132a was also untimely. The Board adopted the findings of the workers' compensation administrative law judge, who found the applicant's allegations regarding renal failure to be precluded by prior adjudication and his lumbar spine claims unsupported by substantial evidence.

Workers' Compensation Appeals BoardPetition for ReconsiderationTimelinessLabor Code Section 132aDiscriminationCollateral EstoppelSubstantial EvidenceMedical OpinionPermanent DisabilityQualified Medical Evaluator
References
0
Case No. 04 Civ. 4735 (WCC)
Regular Panel Decision
Oct 03, 2007

Roberts v. Ground Handling, Inc.

Plaintiff Tina Roberts sued her former employer, Group Handling, Inc. (GHI), alleging FMLA interference and disability discrimination under the NYSHRL. Roberts contended GHI failed to reinstate her after medical leave and wrongfully terminated her due to her chronic renal failure. The court denied GHI's motion for summary judgment, finding genuine issues of material fact concerning Roberts's FMLA eligibility and attempts to return to work, and whether GHI's actions constituted discrimination. Additionally, the court partially granted Roberts's motion to strike specific legal conclusions from an affidavit while denying other aspects of her motion.

FMLANYSHRLDisability DiscriminationIntermittent LeaveSummary JudgmentMedical LeaveReasonable AccommodationChronic Renal FailurePeritonitisEmployment Law
References
47
Case No. ADJ7007501
Regular
Dec 24, 2018

KENNETH McCRAY vs. RIALTO UNIFIED SCHOOL DISTRICT

This case involves a worker who sustained an industrial injury to his left foot. The Appeals Board found that the applicant also suffered renal failure and hypertensive heart disease as a result of the injury, awarding 14% permanent disability. The defendant sought reconsideration, arguing the Board erred in awarding further medical treatment for these conditions. The Board denied the petition, clarifying that treatment is awarded for conditions *caused by* the industrial injury, not necessarily the underlying pre-existing conditions themselves. The Board noted the evidence suggesting these conditions may have returned to pre-injury levels, leaving open the possibility for defendants to dispute causation for specific treatments.

Workers' Compensation Appeals BoardRialto Unified School DistrictKenneth McCrayPetition for ReconsiderationDecision After Reconsiderationindustrial injuryleft footrenal failurehypertensive heart diseasepermanent disability
References
0
Case No. 2021 NY Slip Op 00070 [190 AD3d 1067]
Regular Panel Decision
Jan 07, 2021

Matter of Sudnik v. Pinnacle Envtl. Corp.

Wieslaw Sudnik appealed a Workers' Compensation Board decision that denied his claim for benefits, asserting kidney cancer was caused by exposure to toxins near the World Trade Center site after 9/11. Initially, a Workers' Compensation Law Judge found a causal link, but the Board reversed, citing insufficient proof. The Appellate Division affirmed the Board's ruling, concluding that the claimant's treating physician and an independent examiner failed to adequately establish a causal relationship between his employment near the World Trade Center and his renal cell carcinoma, especially considering his history of smoking and asbestos exposure. The court emphasized that the claimant did not meet his burden of proof with competent medical evidence, and therefore the Board's decision was supported by substantial evidence.

Workers' CompensationCausationMedical EvidenceBurden of ProofRenal Cell CarcinomaAsbestos ExposureWorld Trade Center ExposureZadroga LawAppellate ReviewSubstantial Evidence
References
8
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