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Case Law Database

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

Case No. MISSING
Regular Panel Decision

Claim of Morelli v. Tops Markets

Claimant, having sustained work-related injuries in 2007 and receiving benefits, was questioned by a Workers' Compensation Law Judge (WCLJ) regarding work activities at a 2011 hearing. Immediately after, the employer and its carrier sought to introduce surveillance video and investigator testimony, alleging a violation of Workers' Compensation Law § 114-a. The WCLJ denied this request and precluded the evidence, ruling that the carrier failed to disclose the surveillance prior to the claimant's testimony. The Workers' Compensation Board affirmed this decision, reiterating the established requirement for timely disclosure of surveillance materials to prevent 'gamesmanship.' The appellate court subsequently affirmed the Board's decision, finding no arbitrary or capricious action, as the carrier had an opportunity to disclose the evidence before prompting the WCLJ's questioning and before the claimant testified.

Workers' Compensation LawSurveillance EvidenceDisclosure ObligationPreclusion of EvidenceAppellate ReviewEvidence AdmissibilityClaimant TestimonyEmployer ResponsibilitiesCarrier ResponsibilitiesBoard Decision
References
11
Case No. MISSING
Regular Panel Decision
May 17, 2011

Avrio Group Surveillance Solutions, Inc. v. Essex Insurance

Plaintiff Avrio Group Surveillance Solutions commenced a declaratory judgment action against Defendant Essex Insurance Company, seeking an order to defend and indemnify Avrio in a personal injury action. Essex filed a motion to dismiss, which was converted to a motion for summary judgment. The court addressed two main exclusions: the Completed Operations Exclusion and the Contractual Liability Exclusion. The court found a potentiality of coverage under the Completed Operations Exclusion due to ambiguities in the term "intended use" and unresolved factual issues regarding the completion of work, denying summary judgment on this ground. However, the court granted summary judgment in favor of Essex regarding the Contractual Liability Exclusion, as the subcontract did not qualify as an "insured contract" under the policy's specific definition in effect at the time of the incident, and Avrio was presumed to have agreed to these terms. The case will proceed to an evidentiary hearing on the Completed Operations Exclusion.

Insurance CoverageDeclaratory JudgmentSummary JudgmentContractual Liability ExclusionCompleted Operations ExclusionInsurance Policy InterpretationChoice of LawMaryland Contract LawFederal Civil ProcedureDuty to Defend
References
37
Case No. ADJ3787731 (OAK 0332481)
Regular
Oct 17, 2008

LINDA ALCUTT vs. VOLT SERVICES GROUP, GALLAGHER BASSETT SERVICES

The Board granted reconsideration to allow the WCJ to consider surveillance videos and the medical reports of Dr. Morris, which were initially excluded. The WCJ erred by not admitting Dr. Morris' reports, who opined the applicant's condition was permanent and stationary, and by failing to discuss the surveillance evidence. The case is remanded for further proceedings to admit Dr. Morris' reports and consider all evidence.

Workers' Compensation Appeals BoardReconsiderationTemporary DisabilityPermanent and StationaryQualified Medical EvaluatorTreating PhysicianSub Rosa InvestigationMedical ReportsLabor Code § 4062Admissibility of Evidence
References
0
Case No. 2025 NY Slip Op 05557
Regular Panel Decision
Oct 09, 2025

Matter of Harmon v. Faxton Sunset St. Luke's Health Care Ctr. Inc.

Ewelina Harmon, a registered nurse, suffered a concussion, fractured nose, and neurological symptoms after being assaulted by a patient. Her workers' compensation claim was established, leading to temporary total disability benefits. The employer and carrier alleged fraud under Workers' Compensation Law § 114-a, claiming Harmon misrepresented her physical condition based on video surveillance. The Workers' Compensation Law Judge found insufficient evidence of fraud, a decision affirmed by the Workers' Compensation Board. The Appellate Division, Third Department, further affirmed the Board's decision, concluding it was supported by substantial evidence. The court found that the Board, as the arbiter of credibility, reasonably credited Harmon's testimony that her symptoms fluctuated and that her activities observed on surveillance (wearing sunglasses, walking, bending, squatting, driving) were consistent with her medical advice to gradually increase activity.

Workers' CompensationFraudFalse RepresentationDisability BenefitsVideo SurveillanceMedical EvidenceCredibilityAppellate ReviewWorkers' Compensation BoardAdministrative Law
References
6
Case No. MISSING
Regular Panel Decision
May 22, 2000

Claim of De Marco v. Millbrook Equestrian Center

A claimant appealed a decision by the Workers’ Compensation Board, which denied his request to compel his employer and its workers’ compensation carrier to produce surveillance videotape evidence prior to his testimony. The claimant sustained a work-related back injury in 1995 and had been receiving benefits. The carrier contested further benefits, alleging fraud, and sought to introduce a surveillance videotape. The Board ruled that while the carrier must disclose the existence of the video, it was not required to provide it before the claimant's cross-examination. The claimant argued that CPLR discovery rules mandated pre-testimony disclosure. However, the appellate court affirmed the Board’s decision, holding that the Workers’ Compensation Board is not bound by the CPLR's discovery rules, as per Workers’ Compensation Law §§ 111, 118, and 142 (3), which grant the Board authority over disclosure and exempt it from common law or statutory rules of evidence.

Workers' CompensationDiscoverySurveillance VideotapeCPLR 3101(i)Workers' Compensation BoardEvidentiary RulesDisclosure ObligationFraud AllegationClaimant TestimonyAppellate Review
References
2
Case No. MISSING
Regular Panel Decision
Apr 27, 2007

Barone v. City of New York

In a personal injury action, the plaintiff sued IESI, Inc., after falling on a sidewalk. A key piece of evidence, a surveillance videotape of the incident, went missing during discovery, leading the plaintiff to move for sanctions based on spoliation of evidence. The Supreme Court of Kings County initially precluded IESI, Inc. from offering certain evidence at trial. However, the appellate court modified this decision, finding that a negative inference charge at trial was a more appropriate sanction for the missing evidence, and affirmed the order as modified.

Personal InjurySpoliation of EvidenceNegative Inference ChargeSurveillance VideoDiscovery SanctionAppellate ReviewKings CountyCivil ProcedureEvidence LawTorts
References
8
Case No. MISSING
Regular Panel Decision
Mar 25, 1998

People v. Davis

The defendant was convicted of robbery in the first degree after a jury trial in Broome County, stemming from a 1997 robbery of a Giant Market where he was accused of aiding and abetting the actual robber. The defendant appealed, challenging the conviction on grounds of legal sufficiency and the weight of the evidence. The appellate court reviewed the circumstantial evidence presented at trial, including witness testimonies and physical evidence found at the defendant's apartment. The court affirmed the judgment, concluding that a rational trier of fact could find the defendant an accomplice and that the verdict was not against the weight of the evidence. A procedural issue concerning the jury's request to replay a surveillance videotape was also addressed, but deemed unpreserved for appellate review.

RobberyFirst DegreeAccompliceCircumstantial EvidenceAppellate ReviewLegal SufficiencyWeight of EvidenceJury DeliberationsProcedural ErrorPreservation Rule
References
12
Case No. ADJ3156337 (FRE 0209931) ADJ4199467 (FRE 0209932)
Regular
Nov 20, 2008

FRANK FLORES vs. NICKEL'S PAYLESS STORES, WAUSAU INSURANCE COMPANIES, EVEREST NATIONAL INSURANCE COMPANY, AMERICAN COMMERCIAL CLAIMS ADMINSITRATORS

The Workers' Compensation Appeals Board granted reconsideration of an award for a 1999 right foot and ankle injury, specifically addressing the defendant's claims of error in permanent disability calculation without apportionment and the exclusion of medical evidence. The Board intends to admit the Agreed Medical Evaluator's reports into evidence, which the WCJ had previously excluded. This decision will allow the Board to review all relevant medical evidence before making a final determination on apportionment and the applicant's claimed injuries.

Workers Compensation Appeals BoardIndustrial InjuryPermanent Partial DisabilityApportionmentAgreed Medical EvaluatorSubstantial Medical EvidenceAdmissibility of EvidencePetition for ReconsiderationAmended Findings Award and OrderMinutes of Hearing
References
0
Case No. MISSING
Regular Panel Decision

Lindsey v. County of Erie

The plaintiff, Ms. Lindsey, an employee of Ciminelli Construction Company, was injured at a worksite on March 21, 2000, and subsequently sought both Labor Law benefits and workers' compensation. After workers' compensation benefits were suspended due to alleged misrepresentation, Ms. Lindsey filed a motion seeking to compel Travelers Insurance Company, the compensation carrier, to produce surveillance videotapes prior to further Workers' Compensation Board proceedings. Travelers Insurance Company argued that such discovery would violate administrative rules; however, the court found that CPLR 3101 (i) was controlling in the civil action. The court further determined that Travelers, despite not being a direct party to the Labor Law action, created the surveillance tapes for its overall defense of claims against its insured, making them discoverable. Consequently, the court granted the plaintiff's motion, ordering Travelers Insurance Company to immediately deliver all surveillance tapes to the plaintiff's counsel.

Discovery MotionSurveillance VideotapesWorkers' CompensationLabor LawCPLR 3101(i)Insurance Carrier LiabilityAdministrative RulesCivil ProcedureEmployer LiabilityNonparty Discovery
References
7
Case No. ADJ8518632
Regular
May 09, 2017

HORACIO MONTOYA vs. CBC FRAMING, INC., ARCH INSURANCE COMPANY, A B GALLAGHER BASSETT

The WCAB granted the defendant's Petition for Removal regarding a prior WCJ order compelling a Functional Capacity Evaluation. Removal was granted because the WCJ's order was based on a medical report that had not been formally admitted into evidence, preventing meaningful review. The Board will now admit the defendant's medical report into evidence for the limited purpose of determining the Petition for Removal. This action is an extraordinary remedy due to the prejudice caused by relying on unadmitted evidence.

RemovalFunctional Capacity EvaluationIndustrial InjuryPrejudiceIrreparable HarmAdmitted EvidenceQualified Medical EvaluationExhibit AAdministrative Law JudgePetition for Removal
References
4
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