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Case No. ADJ10328682

Regular

Jun 22, 2018

EDUARDO VILLANO vs. LIVINGSTON CONCRETE SERVICES, INSURANCE COMPANY OF THE WEST

This case concerns an applicant who sustained an industrial injury to his testicle and right hip. The applicant underwent a testicle amputation and later required hip surgery, leading to ongoing temporary disability. The Workers' Compensation Appeals Board granted reconsideration, reversing a prior award of extended temporary disability benefits. The Board ruled that extended benefits under Labor Code section 4656(c)(3)(C) are only applicable when the temporary disability arises from the specific enumerated condition, in this case, an amputation, and not from a subsequent, unrelated condition like the applicant's hip injury. Therefore, the applicant is limited to the standard 104 weeks of temporary disability.

Labor Code section 4656(c)(3)(C)AmputationOrchiectomyTemporary Disability IndemnityPetition for ReconsiderationFindings and AwardWCJAppeals BoardMaximum Medical ImprovementHip Injury

References

Case No. MISSING

Regular Panel Decision

Nov 18, 2015

Montgomery v. Hackenburg

Plaintiff William Montgomery, a locker room attendant, and his wife sued for injuries sustained when a co-employee, the general manager (defendant), struck Montgomery in the groin with a golf club shaft, leading to surgical removal of his left testicle. Defendant moved for summary judgment, contending that workers’ compensation was plaintiff’s exclusive remedy. The Supreme Court denied this motion, citing factual disputes regarding whether defendant acted outside the scope of employment or engaged in an intentional tort. The Appellate Division affirmed, concluding that differing accounts of the incident created genuine questions of fact as to defendant's intent and whether his actions were grossly negligent or reckless, thus making summary judgment inappropriate. The court emphasized that the Workers' Compensation Law § 29 (6) exclusive remedy defense does not apply if an employee is acting outside the scope of employment or committed a willful or intentional tort.

Workers' Compensation ExclusivityIntentional Tort ExceptionScope of EmploymentSummary Judgment MotionCo-employee LiabilityGolf Club IncidentPersonal InjuryAppellate ReviewFactual DisputeGross Negligence

References

Case No. MISSING

Regular Panel Decision

Dominguez v. Fixrammer Corp.

Plaintiff Hippolito Dominguez sued to recover for injuries sustained while operating a power stud gun for his employer, Creative Structures, Inc., which resulted in the loss of a testicle. The jury awarded $800,000, apportioning liability: 25% to Creative Structures, 40% to the manufacturer Fixrammer Corporation, and 35% to the distributor Barnett Lighting Corporation. The employer settled for $310,000, and the manufacturer dissolved before trial. The plaintiff moved to increase Barnett Lighting Corporation's liability, arguing an inability to enforce judgment against the dissolved manufacturer. The court denied this motion, applying CPLR 1601 and General Obligations Law § 15-108 to limit the distributor's liability for noneconomic damages to its equitable share. The court also denied plaintiff's motion to increase the award for future pain and suffering and the distributor's cross-motion to set aside the verdict. Final judgments were entered against Barnett Lighting Corporation for $308,952 and against Fixrammer Corporation for $343,435.

Joint TortfeasorsLimited LiabilityEquitable ShareSettlement SetoffNoneconomic DamagesEconomic DamagesVerdict RestructuringPost-Trial MotionProduct LiabilityPersonal Injury

References

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EDUARDO VILLANO vs. LIVINGSTON CONCRETE SERVICES, INSURANCE COMPANY OF THE WEST

Labor Code section 4656(c)(3)(C)AmputationOrchiectomyTemporary Disability IndemnityPetition for ReconsiderationFindings and AwardWCJAppeals BoardMaximum Medical ImprovementHip Injury

Montgomery v. Hackenburg

Dominguez v. Fixrammer Corp.

Joint TortfeasorsLimited LiabilityEquitable ShareSettlement SetoffNoneconomic DamagesEconomic DamagesVerdict RestructuringPost-Trial MotionProduct LiabilityPersonal Injury