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

Case No. ADJ767870 (LAO 0816816) ADJ1415110 (VNO 0526399)
Regular
Mar 21, 2011

EVELYN PIERRE vs. CALIFORNIA DEPARTMENT OF MOTOR VEHICLES; Legally Uninsured

The Workers' Compensation Appeals Board denied reconsideration of a decision, upholding the denial of a second penalty for unreasonably delayed permanent disability indemnity. The applicant sought two separate Labor Code section 5814 penalties, but the Board found the employer's failure to pay indemnity and the related section 4650(d) penalty constituted a single continuous act of non-payment, not separate and distinct acts as required by *Christian v. WCAB*. Additionally, the petition for reconsideration was denied for failing to include proof of service and notice of the applicant's right to independent counsel.

WORKERS' COMPENSATION APPEALS BOARDDENYING RECONSIDERATIONLab. Code§ 5814permanent disability indemnityLab. Code§ 4650(d)unreasonably delayedseparate and distinct actsattorney's fee
References
4
Case No. ADJ207630 (VNO 0423900), ADJ4689357 (VNO 0462906)
Regular
Feb 11, 2015

MANUEL PASQUIER vs. VOLUTONE DISTRIBUTING COMPANY, VIRGINIA SURETY INSURANCE COMPANY

This case concerns applicant Manuel Pasquier's petition for reconsideration of a Workers' Compensation Appeals Board (WCAB) decision. The WCAB initially found that the defendant unreasonably delayed three lump sum payments, resulting in interest, a $10,000 penalty under Labor Code § 5814, and attorney's fees. Pasquier argued for multiple penalties, citing the distinct nature of the payments, while the WCAB affirmed the single penalty, viewing the late payments as one act of unreasonable delay. The majority also upheld the WCJ's attorney's fee calculation, disagreeing with Pasquier's claim for higher fees and hours. However, one Board member dissented, arguing that the three distinct payments (disability indemnity, MSA seed money, and attorney's fees) constituted separate acts of unreasonable delay, each warranting an individual penalty, and supported the higher attorney's fee rate.

Compromise and ReleaseJoint Findings of Fact and Orderunreasonable delaylump sum paymentsLabor Code section 5814attorney's feeLabor Code section 5814.5Petition for Reconsiderationworkers' compensation administrative law judgeseparate acts
References
12
Case No. MISSING
Regular Panel Decision

Carmille A. v. David A.

In this Family Court Act article 8 family offense proceeding, the petitioner filed a supplemental petition alleging the respondent willfully violated a modified order of protection on two separate occasions in March 1994. The court found these violations and civilly committed the respondent to consecutive terms of incarceration totaling ten months. The respondent moved for reargument, citing the appellate authority of Matter of Vitti v Vitti, which held that Family Court Act article 8 prohibits consecutive commitments exceeding a total of six months. The presiding judge, Guy P. De Phillips, disagreed with the Vitti ruling, asserting that legislative history and public policy regarding domestic violence support the imposition of consecutive civil commitments for distinct violations, even if the cumulative term exceeds six months, provided they are separate offenses for Sixth Amendment purposes. Consequently, the court denied the respondent's motion for reargument, affirming its authority to impose such consecutive sentences.

Family LawDomestic ViolenceOrder of ProtectionContempt of CourtCivil CommitmentConsecutive SentencesFamily Court ActStatutory InterpretationJudicial DiscretionAppellate Review
References
11
Case No. MISSING
Regular Panel Decision
Aug 18, 2003

In re the Claim of Burdick

The claimant, a model builder for Valeo Electrical Systems, Inc. in Rochester, Monroe County, voluntarily participated in a retirement incentive program and separated from employment on November 1, 2002. Valeo had filed for chapter 11 bankruptcy and was approved to move its compressor production operations to Mexico, leading to a reduction in its labor force. Following his separation, the claimant applied for a trade readjustment allowance under the federal Trade Act of 1974. The Unemployment Insurance Appeal Board denied his application, ruling that his separation was for a reason other than lack of work. The appeal ensued, and the court affirmed the Board's decision, finding it rational based on testimony that the claimant had sufficient seniority and would not have been among those involuntarily eliminated had he not elected the incentive program.

Trade Readjustment AllowanceUnemployment BenefitsVoluntary SeparationSeniorityBankruptcyWorkforce ReductionAppellate ReviewTrade Act of 1974Employment LawNew York State
References
5
Case No. ADJ9489540
Regular
Jun 03, 2019

KEN JENSEN vs. COUNTY OF SANTA BARBARA, DEPARTMENT OF SOCIAL SERVICES, Permissibly Self-Insured, CORVEL CORPORATION (Claims Administrator)

The Workers' Compensation Appeals Board denied the applicant's petition for reconsideration of an award. The applicant sought multiple penalties for the defendant's alleged continuous unreasonable denial and delay of benefits. However, the Board found that the defendant's conduct constituted a single unreasonable act, not multiple distinct acts required for separate penalties under Labor Code section 5814. The applicant is entitled to only one penalty.

Workers' Compensation Appeals BoardPetition for ReconsiderationFindings of Fact and AwardLabor Code section 5813Labor Code section 5814unreasonable denial of benefitsfrivolous delaysanctionsattorney's feespenalty
References
2
Case No. MISSING
Regular Panel Decision

Liebman v. New Jersey Manufacturers Insurance

A physician, acting as plaintiff, brought a jury trial action against an insurance company, the defendant, under the New York State No-Fault Law to recover fees for surgical procedures and subsequent hospital visits, as well as attorneys' fees. The core dispute revolved around whether certain surgical procedures (arthroscopy, arthrotomy, excision of torn medial meniscus) were separate and distinct for billing purposes, and if post-operative hospital visits constituted reimbursable care or included follow-up care under the Workers’ Compensation Board medical fee schedule. The jury found arthroscopy and arthrotomy to be separate procedures, but arthrotomy and excision were not. They also determined the hospital visits were follow-up care. The court, finding the issues novel and unique, awarded the plaintiff $4,425 plus interest in attorneys' fees, exceeding the statutory maximum.

No-Fault LawInsurance ClaimMedical Billing DisputeAttorneys' FeesJury TrialSurgical ProceduresWorkers' Compensation ScheduleNovel and Unique IssuesOrthopedic SurgeryArthroscopy
References
7
Case No. ADJ6693720
Regular
Mar 15, 2010

KERRY NECHODOM vs. CITY OF GROVER BEACH

The Workers' Compensation Appeals Board granted reconsideration to amend the date of injury for Kerry Nechodom's right shoulder injury in case ADJ6693720 from February 3, 2007 - September 10, 2009 to August 12, 2008 - September 10, 2009. This amendment acknowledges a separate cumulative trauma injury due to distinct periods of disability and lack of continuous treatment between injuries. The Board affirmed the original award, finding that the applicant sustained two separate cumulative trauma injuries causing distinct periods of temporary disability. The employer's arguments regarding the cumulative trauma period and Labor Code $\S 4656$ limitations were addressed and resolved by this clarification.

Workers' Compensation Appeals BoardKerry NechodomCity of Grover BeachADJ6693720ADJ5791464ReconsiderationJoint Findings and AwardIndustrial InjuryRight ShoulderCumulative Injury
References
11
Case No. No. 29, No. 30
Regular Panel Decision
Apr 21, 2022

The Matter of the Claim of Thomas Johnson v. City of New York , The Matter of the Claim of Joseph D. Liuni v. Gander Mountain

The New York Court of Appeals addressed a common issue in these appeals: whether a claimant’s schedule loss of use (SLU) award must always be reduced by a prior SLU award to a different subpart of the same body “member” under Workers’ Compensation Law (WCL) § 15. The Court clarified that separate SLU awards for distinct injuries to the same statutory member are permissible, provided the claimant demonstrates that the second injury resulted in an increased loss of use. For Thomas Johnson, the Court affirmed the prior decision, concluding he failed to present sufficient evidence isolating the impairment caused solely by his knee injury, apart from his prior hip injury award. Conversely, for Joseph D. Liuni, the Court reversed and remitted the case, as Liuni had provided evidence through his expert that his elbow and shoulder injuries were separate pathologies, each contributing distinctly to the loss of use of his arm.

Schedule Loss of Use (SLU)Successive InjuriesBody Member ImpairmentEarning CapacityStatutory InterpretationKnee InjuryHip InjuryElbow InjuryShoulder InjuryMedical Expert Testimony
References
29
Case No. MISSING
Regular Panel Decision

McCormack v. IBM

Plaintiffs John McCormack, Mark Lingl, and Ron Shelton filed an Amended Complaint against International Business Machines Corp. (IBM), alleging age discrimination in violation of the Age Discrimination in Employment Act (ADEA) and the New York State Human Rights Law (NYSHRL). They claim IBM engaged in discriminatory practices by terminating older employees under the guise of 'resource actions' and then replacing them with younger, recent college graduates. Defendant IBM moved for judgment on the pleadings, asserting that two of the plaintiffs, Shelton and Lingl, had signed separation agreements containing waivers of claims. The Court denied IBM's motion, finding that factual issues remained regarding whether the separation agreements complied with the Older Workers Benefit Protection Act (OWBPA) and whether the plaintiffs were fraudulently induced into signing them due to IBM's alleged misrepresentations about its workforce 'streamlining.' The court determined that discovery was necessary to resolve these factual disputes concerning the validity of the waivers for both federal and state law claims.

Age DiscriminationADEANYSHRLOWBPAMotion for Judgment on the PleadingsFraudulent InducementWaiverClass ActionEmployment LawWorkforce Reduction
References
56
Case No. CV-23-1229
Regular Panel Decision
Dec 12, 2024

Matter of Webster v. Office of Children & Family Servs.

Claimant Percival Webster, who previously received a 50% schedule loss of use (SLU) award for his right leg due to a 2018 knee injury, sustained a second compensable injury to his right hip in March 2020. An independent medical examination by John Ioia, credited by the Workers' Compensation Law Judge (WCLJ), assessed a 50% SLU of the right leg solely attributable to the hip injury. The employer's carrier contended that the new award should be offset by the prior knee injury award, citing *Matter of Genduso*. However, the Workers' Compensation Board affirmed the WCLJ's decision, relying on *Matter of Johnson v City of New York*, which permits separate SLU awards for distinct injuries to the same body member if the claimant proves the second injury caused an increased loss of use independently. The Board found sufficient medical evidence to support the finding that the hip injury was a separate pathology warranting a distinct 50% SLU award, a decision which the Appellate Division affirmed.

Schedule Loss of UseWorkers' Compensation Board DecisionRight Hip InjuryRight Knee InjuryIncreased Loss of UseMedical Expert TestimonyIndependent Medical ExaminationOffsetting Disability AwardsStatutory InterpretationPrior Injury
References
6
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