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

Case No. 04-14-00097-CV
Regular Panel Decision
Dec 17, 2014

Luis Alfredo Rosa and Myrna Lizzet Rosa v. Mestena Operating, LLC

The Appellants, Luis Alfredo Rosa and Myrna Lizzet Rosa, seek en banc reconsideration of a prior panel's decision that affirmed a summary judgment in favor of Mestena Operating, LLC. Luis Alfredo Rosa sustained an electrocution injury while repairing an AEP electrical pole on a third party's property, allegedly due to a malfunctioning lightning arrester on Mestena's adjacent mineral lease property. The panel previously applied Chapter 95 of the Texas Civil Practice & Remedies Code, which limits a property owner's liability to independent contractors, finding that the Rosas failed to demonstrate Mestena exercised control over the work or had actual knowledge of the dangerous condition. The Rosas argue that Chapter 95 should not apply because Mestena lacked a direct contractual relationship with Rosa's employer, the work was performed on another's property, and the panel's interpretation imposes an impossible burden while conflicting with established statutory construction rules and other appellate decisions.

Premises LiabilityStatutory ConstructionTexas Civil Practice and Remedies Code Chapter 95Independent Contractor LiabilityProperty Owner LiabilityEn Banc ReconsiderationAppellate ProcedureActual KnowledgeControl over WorkContractual Relationship
References
35
Case No. ADJ1479326 (ANA 0411799) ADJ7233578
Regular
Oct 07, 2014

JONATHAN DUONG vs. AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA, HARTFORD INSURANCE COMPANY OF THE MIDWEST

The Workers' Compensation Appeals Board overturned a WCJ's decision to exclude sub rosa surveillance video. The Board found no legal basis for excluding the video obtained in a mobile home park parking lot and a grocery store, as the applicant lacked a reasonable expectation of privacy in those public areas. The Board determined that the defendant would suffer significant prejudice from the exclusion, justifying removal of the case. Therefore, the sub rosa video was ruled admissible and may be provided to medical evaluators.

Sub rosa videoremovalreconsiderationadmissibilityinvasion of privacyreasonable expectation of privacycivil liabilityworkers' compensation fraudmedical-legal evaluatorworkers' compensation appeals board
References
20
Case No. 11-19-00123-CV
Regular Panel Decision
Apr 08, 2021

Pedro De La Rosa and Angelina De La Rosa v. Basic Energy Services, L.P., by and Through Its General Partner, Basic Energy Services GP, LLC

Pedro and Angelina De La Rosa appealed a trial court's order granting a plea to the jurisdiction filed by Basic Energy Services, L.P. and Basic Energy Services GP, LLC. The De La Rosas alleged intentional injuries to Pedro during a work-related truck accident and subsequent medical interference, plus Angelina's loss of consortium. The Eleventh Court of Appeals determined that the Appellants' claims fell under the intentional-injury exception to the Texas Workers’ Compensation Act, thereby establishing subject-matter jurisdiction. The court also clarified that election of remedies is an affirmative defense, not a jurisdictional bar. Consequently, the appellate court reversed the trial court's order and remanded the case for further proceedings.

Intentional InjuryWorkers Compensation ActSubject Matter JurisdictionPlea to JurisdictionExclusive RemedyElection of RemediesTruck AccidentEmployer LiabilityMedical InterferenceLoss of Consortium
References
33
Case No. ADJ1646469 (VNO 0550706)
Regular
Apr 19, 2013

ANDREW HERNANDEZ vs. STATE OF CALIFORNIA - CALIFORNIA HIGHWAY PATROL, STATE COMPENSATION INSURANCE FUND

This case concerns the defendant's petition for reconsideration of an award for industrial injury to the applicant's low back and cervical spine. The defendant argued the applicant was not temporarily disabled as they offered a modified position consistent with AME Dr. Sew Hoy's restrictions, and that sub rosa videos should have been admitted. The Board denied reconsideration, finding Dr. Sew Hoy's report was qualified and did not preclude temporary disability, especially when contrasted with the applicant's treating physician's consistent findings. The Board also upheld the exclusion of the sub rosa videos due to late disclosure, as required by Labor Code section 5502(d)(3).

Workers' Compensation Appeals BoardAndrew HernandezState Compensation Insurance FundFindings and Awardindustrial injurylow backcervical spinetemporary disabilitypermanent disabilityfuture medical treatment
References
1
Case No. 3-91-347-CV
Regular Panel Decision
May 06, 1992

Silbrestre Y. Rosas v. Transportation Insurance Company and Mary Lynn Naucke

Silbrestre Y. Rosas, the appellant, sued Transportation Insurance Company (TIC) and its insurance adjuster, Mary Lynn Naucke, alleging a breach of the common law duty of good faith and fair dealing. This claim arose from TIC's termination of Rosas's workers' compensation benefits in 1987, despite a subsequent settlement in 1988 that reinstated benefits. Rosas filed his good-faith lawsuit in 1990. The trial court granted summary judgment to the defendants, ruling that Rosas's claim was barred by the two-year statute of limitations. On appeal, Rosas contended that the limitations period should have commenced upon the settlement of his workers' compensation suit. However, the appellate court affirmed the trial court's decision, holding that, per *Murray v. San Jacinto Agency*, the cause of action accrued on the date TIC initially terminated benefits in 1987, rendering Rosas's 1990 filing untimely.

Statute of LimitationsWorkers' CompensationBreach of Good Faith and Fair DealingSummary JudgmentAccrual of Cause of ActionInsurance LawAppellate ReviewTort DamagesDenial of BenefitsInsurance Adjuster Liability
References
10
Case No. MISSING
Regular Panel Decision

Monte Carlo Distributing Co. v. Rosas

Joe Rosas sued Southern Brewing Company and Monte Carlo Distributing Company for damages resulting from a collision between his truck and one driven by Barrett, owned by Monte Carlo Distributing Company. The collision occurred when Barrett attempted to pass Rosas's truck, which was carrying a long culvert without a required red flag. A jury found Barrett negligent for failing to keep a proper lookout and awarded Rosas $7,500. Monte Carlo Distributing Company appealed, citing conflicting jury findings and the trial court's refusal to submit defensive issues regarding Rosas's alleged contributory negligence in not displaying the red flag. The appellate court reversed the judgment and remanded the case, concluding that the failure to submit these defensive issues, which could have constituted a complete defense, was an error.

CollisionTruck accidentNegligenceContributory negligenceLookoutRed flag statuteDamagesJury findingsAppellate reviewReversal
References
10
Case No. ADJ3995122 (OAK 0343980)
Regular
Aug 13, 2013

ROSA GOMEZ vs. NOB HILL FOODS, YORK INSURANCE SERVICES

The Workers' Compensation Appeals Board granted removal to address the exclusion of sub rosa films and investigator testimony. The trial judge had excluded this evidence because it was disclosed late and not shown to treating doctors. However, the Board found that the defendant properly disclosed the evidence and investigators at the mandatory settlement conference per Labor Code § 5502(d)(3). The admissibility of the sub rosa films and investigator testimony is now deferred to the trial judge.

Sub rosa filmsremovalmandatory settlement conferencedisclosureevidence exclusioninvestigative reportsLabor Code section 5502petition for removalpetition for reconsiderationWorkers' Compensation Appeals Board
References
0
Case No. 2022 NY Slip Op 05144
Regular Panel Decision
Sep 13, 2022

Rosa v. 47 E. 34th St. (NY), L.P.

This case involves an appeal regarding the summary judgment motions in a Labor Law action stemming from an electrical accident. Decedent Danny Rosa, an employee of June Electrical Corp., was electrocuted while working on an energized bus duct at a building managed by Bridgestreet Corporate Housing, LLC and owned by 47 East 34th Street (NY), L.P. and CIM Group, L.P. The Supreme Court initially granted summary judgment dismissing plaintiff's Labor Law §§ 240 (1) and 241 (6) claims but denied dismissal of Labor Law § 200 and common-law negligence claims. The Appellate Division modified the orders, reinstating the Labor Law §§ 240 (1) and 241 (6) claims against 47 East 34th, CIM, and Bridgestreet, finding issues of fact regarding whether Rosa was compelled to work on an energized bus duct and the supervision of the work. The court affirmed the denial of summary judgment for June Electrical Corp. on indemnification and contribution claims, noting the failure to eliminate factual issues regarding grave injury.

Electrical AccidentLabor Law ClaimsSummary JudgmentWorkplace SafetyBuilding ConstructionElectrocutionAppellate ReviewDuty of CareCommon-Law NegligenceIndustrial Code Violations
References
17
Case No. MISSING
Regular Panel Decision

Video Aid Corp. v. Town of Wallkill

The case discusses whether Video Aid Corp. should be reimbursed for an unconstitutional $27,000 water sewer tap-in fee paid to the Town of Wallkill to obtain a building permit. This dissenting opinion, authored by Bellacosa, J., argues that the Appellate Division's order for reimbursement was correct, stating that the payment was made under legal duress. The dissent highlights that the Town unlawfully exacted the fee, impeding Video Aid's business expansion, and that Video Aid's immediate lawsuit constituted "authentic resistance." It draws on precedents affirming that municipalities cannot manipulate responsibilities for revenue generation and that involuntary payments, even without formal protest, warrant recovery, ultimately advocating for affirmance of the reimbursement order.

Unconstitutional feeLegal duressInvoluntary paymentBuilding permitMunicipal feesReimbursementTown of WallkillVideo Aid Corp.Business expansionAppellate Division
References
11
Case No. ADJ4617752 (VNO 0390167), ADJ1668605 (VNO 0470519)
Regular
Nov 01, 2010

ROBERT SCHENCK vs. COLIN CLINTON, CALIFORNIA INSURANCE GUARANTEE ASSOCIATION, RELIANCE INSURANCE COMPANY, AFFORDABLE QUALITY MOVING & STORAGE, STATE COMPENSATION INSURANCE FUND

This case involves applicant Robert Schenck's petition for reconsideration of a workers' compensation award. Schenck argued the judge erred by admitting sub-rosa video evidence and by not finding total disability based on Dr. Lavi's opinion. The Board denied the petition, finding the sub-rosa evidence was properly admitted and that Dr. Lavi's opinion lacked substantial evidentiary support for total disability. The Board affirmed the WCJ's reliance on defense medical reports finding permanent disability of 29% after apportionment.

SubrogationSub rosa evidenceMandatory Settlement ConferencePermanent DisabilityApportionmentWorkers' Compensation JudgeReconsiderationSubstantial EvidenceQualified Medical ExaminerDoctor-shopping
References
4
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