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

Case No. ADJ10205547, ADJ10205545, ADJ10205546
Regular
Jul 16, 2019

ROSENDO HERNANDEZ vs. CALIFORNIA HIGHWAY PATROL, STATE OF CALIFORNIA

The Workers' Compensation Appeals Board (WCAB) amended its prior decision regarding applicant Rosendo Hernandez's injuries. While affirming findings of work-related low back and right knee injuries with corresponding permanent disability ratings, the WCAB reversed the finding of unreasonable delay in paying permanent disability advances. The Board clarified that the defendant had a colorable argument for not providing advances due to the applicant's continued full salary employment, thus no penalty was warranted for this delay. The decision also corrected clerical errors and confirmed the applicant's attorney fee.

Workers' Compensation Appeals BoardCalifornia Highway PatrolPermanent Disability AdvancesLabor Code section 4650Agreed Medical EvaluatorAlmaraz-Guzman analysisAMA GuidesUnreasonable Delay5814 penaltyFindings Award and Order
References
4
Case No. 2021 NY Slip Op 02157 [193 AD3d 733]
Regular Panel Decision
Apr 07, 2021

Matter of Hernandez v. Port Wash. Union Free Sch. Dist.

Edwin Hernandez, a motor equipment operator, was terminated from his employment with the Port Washington Union Free School District after sustaining injuries on the job and subsequently being charged with misconduct for allegedly being out of work on workers' compensation while able to perform his duties. Following a hearing pursuant to Civil Service Law § 75, a hearing officer found Hernandez guilty of 14 disciplinary charges and recommended termination, which the District adopted. Hernandez commenced a CPLR article 78 proceeding to challenge the determination. The Appellate Division, Second Department, reviewed the administrative determination, finding it was supported by substantial evidence and that the penalty of termination was not shocking to one's sense of fairness, thus confirming the determination and dismissing the petition.

Employee TerminationMisconductCivil Service Law § 75CPLR Article 78Administrative ReviewSubstantial EvidenceAppellate ReviewWorkers' Compensation LeaveDisciplinary ChargesPublic Employment
References
8
Case No. MISSING
Regular Panel Decision
Feb 24, 1998

Hernandez v. Jackson, Lewis, Schnitzler & Krupman

Plaintiff Sumaira Hernandez filed an action against her employer, Defendant Jackson Lewis, alleging quid pro quo and hostile work environment sexual harassment, unlawful retaliation, and unlawful discrimination based on race and national origin, pursuant to Title VII and the New York Human Rights Law. Hernandez claimed that a billing coordinator, Mr. Mack, solicited sexual favors in exchange for overtime, and that the comptroller, Mr. Patterson, engaged in discriminatory practices regarding work assignments, bonuses, and promotions, and responded inappropriately to her complaints. The defendant moved for summary judgment, arguing prompt action and insufficient evidence for various claims. The Court denied the motion for summary judgment on all claims, finding triable issues of fact regarding employer liability, quid pro quo harassment, hostile work environment, discrimination, and retaliation.

Sexual HarassmentHostile Work EnvironmentQuid Pro QuoRetaliationDiscriminationRace DiscriminationNational Origin DiscriminationTitle VIINew York Human Rights LawSummary Judgment Motion
References
16
Case No. 2021 NY Slip Op 03378
Regular Panel Decision
May 27, 2021

Hernandez v. 767 Fifth Partners, LLC

Tommy Hernandez, the plaintiff, was injured when the plywood platform of a baker's scaffold collapsed beneath him while he was installing window soffits. He moved for partial summary judgment on his Labor Law § 240 (1) claim, which was granted by the Supreme Court, New York County. The third-party defendant, J.P. Phillips, Inc., appealed, arguing that Hernandez was the sole proximate cause of the accident. However, Phillips failed to provide proof that the scaffold was an adequate safety device. The Appellate Division, First Department, unanimously affirmed the lower court's order, finding that potential comparative negligence did not preclude summary judgment as Phillips's foreman was aware of workers moving scaffolds in the manner described.

Scaffold CollapseLabor Law 240(1)Summary JudgmentAppellate AffirmationWorkplace AccidentConstruction SafetyThird-Party ActionComparative NegligenceNew York Appellate DivisionWorker Injury
References
3
Case No. MISSING
Regular Panel Decision
May 02, 1989

Hernandez v. New York City

The plaintiff, Antonio Hernandez, was seriously injured after falling through an unguarded opening during a reconstruction project at the St. George Terminal of the Staten Island Ferry. He sued the City of New York, as owner, and Sylvestri Contracting Corporation, the general contractor, alleging a violation of Labor Law § 241 for failing to provide proper safeguards. Hernandez moved for partial summary judgment on liability, but the Supreme Court, Richmond County, denied his motion. This appellate court affirmed that denial, finding a factual issue as to whether the opening was 'reasonably required for proper construction,' which is a statutory exception to the planking requirement under Labor Law § 241 (4). Therefore, the plaintiff did not establish a right to judgment as a matter of law regarding the defendants' duty.

Personal InjuryConstruction AccidentLabor LawSummary JudgmentStatutory ExceptionPlanking RequirementNondelegable DutyGeneral Contractor LiabilityOwner LiabilityAppellate Review
References
4
Case No. 2021 NY Slip Op 05813 [198 AD3d 564]
Regular Panel Decision
Oct 26, 2021

Hernandez v. Consolidated Edison Co. of N.Y., Inc.

Plaintiff Ramon Hernandez sued Consolidated Edison for negligence after his hand was pulled into a bread machine operating in reverse due to Con Ed's faulty rewiring of subterranean electrical cables. A jury found Con Ed negligent and awarded Hernandez damages for past and future pain and suffering, as well as lost earnings. Con Ed's motion to set aside the jury verdict was denied by the Supreme Court. The Appellate Division, First Department, unanimously affirmed this decision. The court found that the trial evidence sufficiently supported the jury's verdict regarding Con Ed's negligence and the awarded damages, and dismissed Con Ed's other contentions.

NegligenceJury VerdictAppellate ReviewPersonal InjuryElectrical WiringDamages AwardPain and SufferingLost EarningsJury InstructionsAppellate Procedure
References
9
Case No. 2020 NY Slip Op 00901
Regular Panel Decision
Feb 06, 2020

Matter of Hernandez v. KNS Bldg. Restoration, Inc.

Claimant Guadalupe Hernandez sought workers' compensation benefits for knee and shoulder injuries sustained on his first day of work for KNS Building Restoration, Inc., who, along with insurer Zurich American Insurance Company, denied an employment relationship and coverage. A Workers' Compensation Law Judge (WCLJ) credited the claimant's testimony, establishing the claim and finding KNS to be the responsible employer covered by a Zurich wrap-up policy, a decision affirmed by the Workers' Compensation Board. On appeal, the Appellate Division, Third Department, affirmed the Board's decision, citing substantial evidence supporting the finding of an employer-employee relationship and the Board's credibility determinations. The court also found no abuse of discretion in the Board's refusal to consider new evidence submitted for the first time on administrative review. The decision therefore upholds the finding that Hernandez was an employee of KNS and was injured at its construction site.

Workers' CompensationEmployment RelationshipSubstantial EvidenceCredibility DeterminationInsurance CoverageConstruction AccidentAppellate ReviewNew EvidenceWrap-up PolicyEmployer Liability
References
9
Case No. 2021 NY Slip Op 05788
Regular Panel Decision
Oct 21, 2021

People v. Hernandez

The defendant, Victor Hernandez, appealed a judgment from the Supreme Court, New York County, rendered May 8, 2015, convicting him upon his plea of guilty of aggravated harassment of an employee by an inmate and sentencing him to a one-year term. The Appellate Division, First Department, unanimously affirmed the judgment. The court ruled that by pleading guilty, the defendant waived his statutory right to seek dismissal of the indictment, including dismissal in furtherance of justice pursuant to CPL 210.40. The appellate court found no compelling factor to warrant such an extraordinary remedy, noting the seriousness of the defendant's actions against a vulnerable hospital worker, a crime for which special statutory protections exist. Furthermore, the defendant received a favorable disposition, with his sentence running concurrently with two prior robbery cases and entailing no additional incarceration.

Aggravated HarassmentInmate OffensePlea of GuiltyWaiver of RightsDismissal of IndictmentCPL 210.40Furtherance of JusticeVulnerable WorkerConcurrent SentenceAppellate Affirmation
References
5
Case No. 2018 NY Slip Op 03919
Regular Panel Decision
May 31, 2018

Hernandez v. Seadyck Realty Co., LLC

The plaintiff, Angel Hernandez, injured his right hand while working for P.A. Painting and Decorating, Corp. and subsequently underwent four surgeries and collected Workers' Compensation benefits. He sued Seadyck Realty Co., LLC, who then brought a third-party claim against P.A. Painting and Decorating, Corp. for common-law contribution and indemnification. The Supreme Court granted summary judgment to P.A. Painting, dismissing the third-party claims. The Appellate Division, First Department, unanimously affirmed this decision, finding that the plaintiff had not suffered a 'grave injury' as defined in Workers' Compensation Law § 11, despite severe limitations in his right hand, because none of the experts found a total loss of use or limitation to just 'passive use'.

Summary JudgmentCommon-Law ContributionIndemnificationGrave InjuryWorkers' Compensation BenefitsAppellate DivisionMedical Expert ReportsOccupational TherapyOrthopedic SpecialistGrip Strength
References
2
Case No. MISSING
Regular Panel Decision
Apr 10, 2002

Hernandez v. 151 Sullivan Tenant Corp.

Plaintiff Alonso Hernandez was severely injured when a hoist, which lacked proper counterweights and securement, collapsed, dragging him from a six-story building. The court affirmed the grant of partial summary judgment to the plaintiff under Labor Law § 240 (1), finding that the hoist was not constructed or operated to provide proper protection. The court rejected the defendant's arguments of recalcitrant worker and sole proximate cause, stating that contributory negligence is not a defense under Labor Law § 240 (1). Additionally, the court affirmed the grant of contractual indemnification to the owner, 151 Sullivan Tenant Corp., against the subcontractor, Jumbo Construction Corp., based on the terms of their agreement, as the owner's liability was purely statutory.

Labor Law § 240(1)Hoist CollapseConstruction AccidentSummary JudgmentContractual IndemnificationRecalcitrant Worker DefenseSole Proximate CauseContributory NegligenceAppellate AffirmationPersonal Injury
References
8
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