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Case Law Database

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

Case No. ADJ1177048
En Banc
Sep 03, 2009

WANDA OGILVIE vs. CITY AND COUNTY OF SAN FRANCISCO

This en banc decision clarifies that a permanent disability rating established by the Schedule is rebuttable, the burden of which rests with the disputing party. It affirms that a primary method of rebuttal is to challenge a component element, such as the Diminished Future Earning Capacity (DFEC) adjustment factor, by providing an individualized factor consistent with statutory requirements.

Diminished Future Earning CapacityDFEC2005 ScheduleRebuttablePrima Facie EvidencePermanent Disability RatingLabor Code section 4660RAND dataIndividualized Adjustment FactorWhole Person Impairment
References
51
Case No. MISSING
Regular Panel Decision
Jul 24, 2002

In re the Claim of Miller v. North Syracuse Central School District

This case involves an appeal from a Workers' Compensation Board decision concerning overlapping workers' compensation awards. The claimant, a food services worker, filed two separate claims: one for occupational disease to her shoulders, leading to a schedule loss of use award, and another for bilateral carpal tunnel syndrome, which resulted in a temporary total disability award for the period from December 13, 1999, to February 14, 2000. The State Insurance Fund argued that the schedule loss of use award should be suspended for this period to prevent an overlap. Initially, a Workers’ Compensation Law Judge disagreed, but the Workers’ Compensation Board reversed, ruling in favor of suspending the schedule award. On appeal, the court reversed the Board's decision, clarifying that a schedule award is not allocable to a specific period of disability and therefore does not overlap with a temporary total disability award covering a limited timeframe. The court distinguished this from cases involving permanent disability awards. The matter was remitted to the Workers’ Compensation Board for recalculation of the claimant’s award.

Workers' CompensationSchedule Loss of UseTemporary Total DisabilityOverlapping AwardsEarning CapacityOccupational DiseaseCarpal Tunnel SyndromeShoulder InjuryAppellate ReviewRecalculation of Award
References
7
Case No. MISSING
Regular Panel Decision

Matter of Terranova v. Lehr Construction Co.

In 2009, Claimant sustained a right knee injury at work, leading to workers' compensation benefits and a 10% schedule loss of use award. Concurrently, Claimant settled a third-party action for $173,500. A dispute arose concerning the carrier's credit and the apportionment of litigation expenses from the third-party settlement, specifically whether Burns v Varriale or Matter of Kelly v State Ins. Fund applied to a schedule loss of use award. The Workers’ Compensation Board ruled that Matter of Kelly controlled, denying Claimant ongoing payments for litigation expenses. The appellate court affirmed, clarifying that for schedule loss of use awards, future benefits are ascertainable, making Matter of Kelly applicable.

Schedule Loss of UseThird-Party SettlementWorkers’ Compensation BenefitsLitigation ExpensesCarrier CreditApportionment of Counsel FeesFuture BenefitsIndependent Medical ExaminationOrthopedist ReportCourt of Appeals Precedent
References
5
Case No. MISSING
Regular Panel Decision

Claim of Grugan v. The Record

Claimant sustained a work-related injury to her left hand in 2007, leading to a dispute over whether she should receive a permanent partial disability classification or a schedule loss of use award. The Workers’ Compensation Board ultimately issued a 15% schedule loss of use award, which the claimant appealed. The Appellate Division affirmed the Board's decision, finding that substantial evidence supported the determination. The court noted that claimant had reached maximum medical improvement and her condition was stable, factors supporting a schedule loss of use award. Conflicting medical opinions from the treating orthopedist and an independent medical examiner were resolved by the Board within its discretion.

Schedule Loss of UsePermanent Partial DisabilityWorkers' Compensation BoardMedical EvidenceIndependent Medical ExaminationTreating PhysicianAppellate ReviewBoard DiscretionMaximum Medical ImprovementConflicting Medical Opinions
References
3
Case No. MISSING
Regular Panel Decision

In Re Raggie

Severius Raggie, a debtor, filed for Chapter 13 bankruptcy in January 2006, which was subsequently dismissed in February 2006 due to his failure to comply with credit counseling requirements and other obligations. In January 2008, Raggie moved to amend his Schedule B and Statement of Financial Affairs to include a personal injury claim against CVP # 1, LLC et al. This motion was prompted by the defendants' attempt in state court to dismiss the personal injury action because it was not listed in Raggie's bankruptcy petition. The court addressed the core issue of whether a dismissed bankruptcy case, as opposed to a closed one, precludes a debtor's right to amend schedules under Bankruptcy Rule 1009(a). The court concluded that 'closed' under § 350 and Rule 1009 does not encompass 'dismissed,' thereby maintaining Raggie's right to amend. Finding no evidence of bad faith, fraud, or prejudice to creditors, the court granted Raggie's motion to amend his schedules, rendering the motion to vacate the dismissal order moot.

Bankruptcy LawChapter 13Schedule B AmendmentDismissed CaseClosed Case DistinctionPersonal Injury ClaimDebtor's RightsFederal Rules of Bankruptcy ProcedureBad FaithCreditor Prejudice
References
17
Case No. MISSING
Regular Panel Decision

Schmidt v. Falls Dodge, Inc.

The claimant was awarded a 21.43% schedule loss of use for binaural hearing loss in 2007. The Workers’ Compensation Law Judge and the Workers’ Compensation Board determined that this award was not subject to temporary disability benefits the claimant was already receiving from earlier workers' compensation cases. The employer and State Insurance Fund appealed, contending that a Court of Appeals decision overruled prior holdings regarding the overlap of schedule and nonschedule awards. The appellate court affirmed the Board's decision, distinguishing between schedule awards for future earnings loss and nonschedule awards for temporary disability during a limited time frame, concluding they do not overlap.

Workers' CompensationSchedule Loss of UseTemporary DisabilityBinaural Hearing LossAward OverlapAppellate DecisionInsurance FundEmployer LiabilityMedical BenefitsEarnings Loss
References
3
Case No. MISSING
Regular Panel Decision

Claim of Keselman v. New York City Transit Authority

Claimant, injured in 1986, initially established a right shoulder injury. The Workers’ Compensation Board affirmed this but denied a causally related neck injury in 1996. After another application in 1998 alleging a worsened neck condition, the Workers’ Compensation Law Judge found a causally related neck injury and permanent partial disability, awarding benefits from February 5, 1998, which the Board affirmed. Separately, the Board also ruled the employer was entitled to credit schedule payments against disability payments made after February 5, 1998. The court affirmed both decisions, finding substantial evidence supported the deterioration of the neck injury post-1996 and that schedule awards are independent of actual disability periods, thus allowing the employer's credit.

Workers' CompensationPermanent Partial DisabilitySchedule AwardDisability PaymentsNeck InjuryRight Shoulder InjuryCausally Related InjuryReopening CaseMedical EvidenceMRI
References
7
Case No. MISSING
Regular Panel Decision

Claim of Kondylis v. Alatis Interiors Co.

Claimant, a painter, was injured in June 2008 and his workers' compensation claim was established for back and left knee injuries. After his death from unrelated causes in July 2009, his attorney sought to amend the claim for neck and right shoulder injuries, submitting a report from treating physician Emmanuel Lambrakis, who found a 60% schedule loss of use for the right shoulder and left knee. A WCLJ granted a posthumous schedule loss of use award, but the Workers’ Compensation Board rescinded it and later reversed the WCLJ's reinstatement, finding Lambrakis's report lacked specific guidelines or clinical findings. The appellate court affirmed the Board's decision, concluding that the medical evidence failed to demonstrate maximum medical improvement, noting continuing pain and need for treatment, and that Lambrakis's report was conclusory.

Schedule Loss of UseWorkers' Compensation BenefitsPosthumous AwardTreating Physician ReportMedical Evidence SufficiencyMaximum Medical ImprovementAppellate ReviewWorkers' Compensation Board DecisionCross-Examination WaiverCPLR Procedure
References
12
Case No. MISSING
Regular Panel Decision

Claim of Patel v. Tal Transportation, Inc.

Claimant, a driver for Tal Transportation, Inc. (TTI), was injured in an automobile accident in April 1996 and filed for workers' compensation benefits. A Workers’ Compensation Law Judge (WCLJ) found claimant to be an employee of TTI and established the case for accident, notice, and causal relationship for various injuries. The Workers’ Compensation Board affirmed the WCLJ's decision on October 18, 2000, confirming the employment relationship. Subsequently, based on a stipulation with the Uninsured Employer’s Fund, the WCLJ awarded claimant a 17½% schedule loss of use of the left arm, which the Board affirmed on December 18, 2001. TTI appealed this latter decision, attempting to challenge the employment relationship, but the court found that TTI's appeal was untimely regarding the employment finding. Since TTI did not challenge the schedule loss of use award itself, the Board's December 18, 2001 decision was affirmed.

Workers' CompensationSchedule Loss of UseEmployment RelationshipTimeliness of AppealAutomobile AccidentUninsured Employer's FundDriverInjuryNew York Workers' Compensation BoardAdministrative Law
References
1
Case No. MISSING
Regular Panel Decision

Claim of Cruz v. City of New York Department of Children's Services

Claimant, injured in an automobile accident while working, received workers' compensation benefits and later settled a third-party action. A Workers’ Compensation Law Judge (WCLJ) and the Workers’ Compensation Board ruled that the self-insured employer was not entitled to offset the third-party settlement against a schedule loss of use (SLU) award, even for the portion initially designated as temporary total disability. The employer appealed, arguing the offset was permissible because the weekly award exceeded statutory thresholds for basic economic loss. However, the court affirmed the Board's decision, clarifying that a schedule loss of use award is not allocable to any specific period of disability and thus is not subject to offset under Workers’ Compensation Law § 29 against first-party benefits, regardless of initial labeling or monthly rate.

Schedule Loss of Use Award OffsetThird-Party SettlementTemporary Total DisabilityPermanent Partial DisabilityBasic Economic LossNo-Fault LawInsurance LawStatutory InterpretationWorkers' Compensation Law § 29Appellate Division
References
6
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