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

Case No. 2022 NY Slip Op 02607 [204 AD3d 1297]
Regular Panel Decision
Apr 21, 2022

Matter of Perez v. Bed, Bath & Beyond

This case concerns an appeal from an amended decision by the Workers' Compensation Board regarding a section 32 waiver agreement. Claimant Jose Perez sought to withdraw from the agreement, but the Board deemed his request untimely. However, the Board later amended its decision to allow 90 days for parties to negotiate a new agreement clarifying inconsistencies in the Medicare Set-Aside terms. The employer and its carrier appealed this amended decision. The Appellate Division, Third Department, dismissed the appeal, ruling that the Board's decision was interlocutory and not a final resolution, thus not ripe for immediate appellate review.

Workers' Compensation LawSection 32 AgreementWaiver AgreementMedicare Set-AsideMSA AnnuityInterlocutory DecisionAppeal DismissedUntimely WithdrawalBoard ReviewRecord Development
References
5
Case No. ADJ8332402, ADJ8336415
Regular
Oct 08, 2018

NESABEL DUMON vs. BED, BATH & BEYOND, ARCH INSURANCE

This case involves Nesabel Dumon's application for workers' compensation benefits against Bed, Bath & Beyond and Arch Insurance. The Applicant filed a Petition for Reconsideration regarding the WCJ's decision. The Workers' Compensation Appeals Board reviewed the petition and the WCJ's report, adopting the WCJ's reasoning. Consequently, the Board denied the Petition for Reconsideration.

WORKERS' COMPENSATION APPEALS BOARDPetition for ReconsiderationDENYWCJ reportadopted and incorporatedNESABEL DUMONBED BATH & BEYONDARCH INSURANCEADJ8332402ADJ8336415
References
0
Case No. MISSING
Regular Panel Decision

McLeod v. Local 140, Bedding, Curtain & Drapery Workers Union, United Furniture Workers

The Regional Director of the National Labor Relations Board (NLRB) sought a temporary injunction against Local 140, a labor union, under Section 10(l) of the National Labor Relations Act. The dispute arose after Sealy, Inc. revoked a franchise, leading to the discharge of employees from Sealy Brooklyn. These former employees, represented by Local 140, began picketing a Sealy New York showroom, demanding their jobs back. The NLRB petitioner argued that an object of the picketing was to force recognition of Local 140 as a bargaining agent, constituting an unfair labor practice under 29 U.S.C.A. § 158(b)(7)(C). However, the court found insufficient evidence to conclude that recognition was the primary objective of the picketing. Instead, it determined that the main purpose was to pressure Sealy to rehire the discharged employees. Therefore, the court denied the motion for a preliminary injunction.

Labor LawNational Labor Relations BoardTemporary InjunctionPicketingUnion OrganizingUnfair Labor PracticeSection 10(l)Recognition PicketingCollective Bargaining AgreementEmployee Discharge
References
6
Case No. MISSING
Regular Panel Decision

Craftmatic Comfort Manufacturing Corp. v. New York State Tax Commission

Petitioner, a Pennsylvania corporation selling adjustable beds, challenged a sales and use tax assessment for the period of March 1978 to February 1981. The corporation argued that sales of its beds, when prescribed by a physician, should be exempt as medical equipment under Tax Law § 1115 (a) (3). The respondent's determination disallowed this exemption, claiming the beds were not primarily used for medical purposes. The court, however, found the respondent's decision lacked substantial evidence, citing approvals from the Workers’ Compensation Board, Medicare, and the FDA, all of which classified the beds as medical devices or hospital beds. Consequently, the court annulled the portion of the determination denying the exemption for prescription sales and remitted the case for further proceedings.

Sales TaxUse TaxMedical Equipment ExemptionHospital BedsPhysician's PrescriptionSubstantial EvidenceTax LawCPLR Article 78Administrative ReviewTax Assessment
References
5
Case No. ADJ1337418 (GOL 0091701) ADJ850408 (GOL 0091702)
Regular
May 26, 2009

DAWAYNE MOGENSEN vs. SANTA YNEZ RIVER WATER DISTRICT, ACWA/JOINT POWERS INSURANCE AUTHORITY

This case concerns an applicant's claim for reimbursement for an orthopedic bed following a stipulated award for future medical treatment for industrial neck and back injuries. The applicant's treating physician supported the need for the bed for pain relief and improved sleep. However, the Agreed Medical Evaluator (AME) opined that there was no evidence-based research to support the medical necessity of such a bed, which the majority decision followed. The dissenting opinion argues the AME's opinion was not substantial evidence as it was based on a legally incorrect premise that beds are never compensable, and that the treating physician's recommendation, coupled with the absence of a negative guideline, should have been sufficient.

Workers' Compensation Appeals BoardDawayne MogensenSanta Ynez River Water DistrictACWA/Joint Powers Insurance AuthorityADJ1337418ADJ850408Petition for ReconsiderationFuture Medical TreatmentOrthopedic BedDr. Richard Kahmann
References
10
Case No. 2017 NY Slip Op 06056
Regular Panel Decision
Aug 09, 2017

Aponte v. Clove Lakes Health Care & Rehabilitation Center, Inc.

The plaintiffs, Blanche Aponte et al., appealed from an order denying their motion to strike the defendant's answer for spoliation of evidence and for summary judgment on liability. The case stemmed from a personal injury claim where Blanche Aponte was allegedly injured by a collapsing bed at the defendant's facility in 2013. The plaintiffs commenced the action two years later, by which time the defendant claimed the bed had been inspected, found fit, and reinserted into use, making it unidentifiable. The appellate court affirmed the lower court's decision, finding that the plaintiffs failed to demonstrate the defendant had prior notice of the claim to warrant sanctions for spoliation, as the bed was discarded pursuant to normal business practices before litigation began.

spoliation of evidencesummary judgmentpersonal injurynotice of claimappellate reviewproperty damagebusiness practicespreservation of evidencecivil procedurenegligent destruction
References
11
Case No. MISSING
Regular Panel Decision

Feilen v. Christman

John Feilen was injured after falling off a roof while applying wood preservative to defendant Juli Christman's house, which also operated as a bed and breakfast. He and his wife sued Christman and her business, Jingle Bell Bed and Breakfast, alleging negligence and violations of Labor Law §§ 240 (1) and 241 (6). Supreme Court denied the plaintiffs' motion and granted the defendants' cross motion for summary judgment, applying the homeowner's exemption to the Labor Law claims, finding Christman did not supervise or control Feilen's work, and that the house's primary purpose remained residential despite a portion being used for a bed and breakfast. The appellate court affirmed this decision, reiterating that the homeowner's exemption depends on the 'site and purpose' of the work, and in this case, the roof work primarily benefitted the residential use of the premises.

Workers' CompensationHomeowner's ExemptionLabor LawRoof FallPersonal InjurySummary JudgmentAppellate ReviewResidential UseCommercial UseBed and Breakfast
References
12
Case No. ADJ9193432
Regular
Mar 06, 2017

RICARDO HERNANDEZ vs. COSMA EMTE, INC., STATE COMPENSATION INSURANCE FUND

The Appeals Board reconsidered a decision denying applicant's requests for home health care, a motorized scooter, and an orthopedic bed. While affirming the denial of the scooter and bed due to insufficient medical reasoning, the Board deferred the home health care issue. This was to allow further development of the record considering specific prescription requirements for home health care under Labor Code section 4600(h) and relevant case law, as the prior utilization review denial was untimely. The applicant was awarded further medical treatment in the form of a psychiatric consult.

Workers' Compensation Appeals BoardPetition for ReconsiderationFindings and AwardLabor Code Section 4610Utilization ReviewPrimary Treating PhysicianHome Health CareMotorized ScooterOrthopedic Bed and MattressPsychiatric Consultation
References
10
Case No. ADJ4260469 (SRO 0081378)
Regular
Jul 13, 2012

JEFFREY KRESS vs. DEPARTMENT OF TRANSPORTATION, STATE OF CALIFORNIA, STATE COMPENSATION INSURANCE FUND

The Appeals Board granted reconsideration to modify a previous order regarding unreasonably delayed payments for acupuncture treatments and an orthopedic bed. The Board removed the $4,400 Labor Code section 5814.5 attorney's fee, finding it inapplicable to the State of California. They increased the penalty for unreasonable delay to 25% and awarded applicant's attorney a 10% fee on that penalty. The Board also clarified that Labor Code section 5800 interest is due on specific acupuncture visits post-stipulation and award, but not on the orthopedic bed as it lacked a specific award.

Workers' Compensation Appeals BoardReconsiderationFindings and OrderAcupunctureOrthopedic bedLabor Code section 5814.5Attorney's feePrejudgment interestSection 5800 interestStipulation and Award
References
7
Case No. MISSING
Regular Panel Decision

Phelan v. State

Julius Phelan, an employee of J. K. Knowles, was severely injured at a New York State Thruway bridge renovation site when guardrails he was loading onto a flatbed truck shifted and struck him after he fell from the truck bed. Claimants alleged violations of Labor Law § 240 (1) and § 241 (6). The Court of Claims initially ruled in favor of the claimants on the § 240 (1) cause of action. However, the appellate court reversed this decision, dismissing the Labor Law § 240 (1) claim on the grounds that falling objects from a truck bed do not constitute an elevation-related hazard, and also dismissed the Labor Law § 241 (6) claim due to the claimants' failure to allege a specific Industrial Code violation in their initial filings.

Workers' CompensationConstruction AccidentFalling ObjectElevation HazardLabor LawSummary JudgmentAppellate ReviewIndustrial Code ViolationPersonal InjuryThruway Bridge
References
12
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