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

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. 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
Case No. MISSING
Regular Panel Decision

People v. Rodriguez

The defendant, indicted for resisting arrest and DWI, filed a motion to prevent the District Attorney from using evidence of his refusal to take a chemical test at trial. The defendant argued that admitting such evidence violates his Fifth Amendment rights against self-incrimination, despite a 1973 amendment to Vehicle and Traffic Law § 1194 that permitted it. The court analyzed precedents, distinguishing between the non-testimonial nature of the test itself and the communicative nature of a refusal. It concluded that a refusal constitutes a communication, thus falling under Fifth Amendment protection. Consequently, the court granted the defendant's motion, ruling that such evidence is inadmissible.

Fifth AmendmentSelf-incriminationChemical Test RefusalDWIAdmissibility of EvidenceConstitutional RightsTestimonial EvidenceImplied Consent LawPreclusion MotionCriminal Procedure
References
19
Case No. MISSING
Regular Panel Decision

People v. Fratt

The defendant, charged with second-degree murder, provided notice of intent to present psychiatric evidence from Dr. Martha Rosen, a defense-retained psychologist, who would testify about dependent personality disorder and 'battered woman's syndrome.' The prosecution subsequently moved for an order compelling Dr. Rosen to prepare a report outlining her findings and evaluations, and for the discovery of her notes. The court granted the prosecution's motion, ruling that the defendant waived psychologist-patient privilege by placing her mental state at issue. The court further held that CPL 250.10, read in conjunction with CPLR 3101(d), requires the defense to provide a detailed notice of psychiatric evidence, including expert qualifications, examination details, relied-upon materials, diagnostic opinions, and the bases for those opinions. The court denied the motion for a pretrial hearing as premature.

Psychiatric EvidenceDiscoveryExpert TestimonyPsychologist-Patient PrivilegeWaiver of PrivilegeCriminal Procedure LawCivil Practice Law and RulesMental StateBattered Woman's SyndromeForensic Evaluation
References
14
Case No. MISSING
Regular Panel Decision
May 18, 2005

Hotel 57 LLC v. Harvard Maintenance, Inc.

In this case, the plaintiff hotel sought over $300,000 for replacing 16 scratched windows, attributing the damage to the defendant's window cleaners. The defendant denied responsibility, suggesting the scratches were preexisting. Crucially, the plaintiff destroyed and replaced the windows without notifying the defendant, sixteen months prior to filing the lawsuit. The Supreme Court initially denied the defendant's motion for summary judgment based on spoliation of evidence. However, the appellate court reversed this decision, emphasizing the plaintiff's intentional destruction of evidence critical to the lawsuit, granted the defendant's motion for summary judgment, and dismissed the complaint.

spoliation of evidencesummary judgmentappellate reviewwindow damageproperty damageintentional destruction of evidencecivil procedureNew York lawconstructionnegligence
References
0
Case No. MISSING
Regular Panel Decision

Sun Trading Distributing Co. v. Evidence Music, Inc.

Plaintiff Sun Trading Distributing Co., doing business as Muse Records and Landmark Records, filed a lawsuit against Evidence Music, Inc. and Kenwood Electronics Corp. alleging unfair competition under Section 43(a) of the Lanham Act and New York State common law. The core of the complaint revolved around the defendants' alleged unauthorized exploitation of sound recordings by jazz artists John Hicks, Edward “Sonny” Stitt, and Antoine Roney. Sun Trading claimed false designation of origin (reverse passing off) for the Stitt recording and false advertising for the Roney recording, leading to consumer confusion. The court granted the defendants' motion for summary judgment on the Lanham Act claims, finding insufficient evidence of actual or likelihood of consumer confusion. Consequently, the court declined to exercise supplemental jurisdiction over the state law claims, dismissing them without prejudice, and denied the plaintiff's cross-motion to amend the complaint.

Lanham ActUnfair CompetitionTrademark InfringementCopyrightSound RecordingsJazz MusicConsumer ConfusionSummary JudgmentSupplemental JurisdictionBreach of Contract
References
23
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. ADJ3134277 (SAC 0237184)
Regular
Feb 11, 2010

KIMBERLY WATKINS vs. STATE OF CALIFORNIA, EMPLOYMENT DEVELOPMENT DEPARTMENT, SUBSEQUENT INJURIES BENEFITS TRUST FUND

This case involves an applicant seeking reconsideration of a Workers' Compensation Appeals Board (WCAB) decision regarding her permanent disability rating. The applicant argues the assigned 39% permanent disability, resulting in a combined 95% disability with pre-existing conditions, is too low. She claims unrebutted medical and vocational expert evidence establishes total permanent disability (100%) due to her inability to compete in the labor market. The WCAB denied reconsideration, adopting the judge's report, but one commissioner dissented, arguing the evidence strongly supported a 100% disability finding.

Subsequent Injuries Benefits Trust FundCumulative traumaIndustrial injuryPermanent disability ratingVocational expertReconsiderationFindings and AwardAgreed medical evaluatorRheumatologistPsychiatrist
References
0
Case No. ADJ986845 (LAO 0843655)
Regular
Apr 18, 2016

RAFAEL CASTRO vs. MATCHMASTER DYEING & FINISHING CO., INC., STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board denied the State Compensation Insurance Fund's (SCIF) petition for reconsideration. SCIF's arguments regarding the cumulative injury dates, vocational evidence supporting 100% permanent disability, and apportionment of permanent disability were rejected. The Board found SCIF waived the injury date issue by stipulating to it and failing to raise it earlier, and that the WCJ's findings were supported by substantial evidence, including unrebutted vocational expert testimony and the Agreed Medical Examiner's deposition. SCIF also failed to provide sufficient basis for apportionment, with the AME unable to clearly link non-industrial causes to the applicant's current condition.

WCABPetition for ReconsiderationCumulative InjuryStipulationsApportionmentPermanent DisabilityVocational ReportAgreed Medical ExaminerDue ProcessWaiver
References
6
Case No. 2021 NY Slip Op 03819 [195 AD3d 510]
Regular Panel Decision
Jun 15, 2021

Sorge v. Sharp Mgt. Corp.

The Appellate Division, First Department, affirmed an order of the Supreme Court, Bronx County, which granted summary judgment to defendants Sharp Management Corporation, 2886 Briggs Realty LLC, and Steven Melowsky, dismissing the complaint against them. The court found the action barred by Workers' Compensation Law § 11. Defendants provided unrebutted evidence that Sharp Management Corporation and 2886 Briggs Realty LLC operated as an integrated entity with shared management and a common Workers' Compensation insurance policy that paid the plaintiff's claim. Despite plaintiff James Sorge's paychecks having been issued by StaffPro, the evidence established he was a special employee of Sharp/Briggs.

Workers' Compensation defensesummary judgmentspecial employee doctrineintegrated entity defensecorporate veilemployment law
References
3
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