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

Case No. W2013-01597-SC-WCO-WC
Regular Panel Decision
Jan 29, 2015

What Happened in Felix vs. Weber Metals Reconsideration?

Orville Lambdin, an employee of Goodyear Tire & Rubber Company for 37 years, suffered a gradual, high-frequency hearing loss due to workplace noise. After retirement, he filed a workers' compensation claim. The trial court initially awarded 10% vocational disability, but later, after a motion to alter or amend and considering expert medical testimony by Dr. Karl Studtmann, increased the award to 30%. This increase was based on Studtmann's alternative methodology for assessing high-frequency hearing loss, as the AMA Guides were deemed not to "cover" losses above 3000 hertz. Goodyear appealed, arguing against the alternative method. The Supreme Court of Tennessee affirmed the trial court's judgment, finding sufficient evidentiary support for Dr. Studtmann's method and the increased vocational disability award.

High-frequency hearing lossVocational disabilityAMA GuidesWorkers' compensationNoise-induced hearing lossMedical impairment ratingExpert medical testimonyOtolaryngologyAudiogramBinaural hearing impairment
References
30
Case No. 2018 NY Slip Op 06841
Regular Panel Decision
Oct 11, 2018

How Did the WCAB Rule in Hardgrove vs. Intercon Security?

In April 2012, claimant Dieula Saintval, a surgical technologist, sustained work-related injuries. Her workers' compensation claim was established, and a Workers' Compensation Law Judge (WCLJ) classified her with a nonschedule permanent partial disability, assessing a 66% loss of wage-earning capacity. The employer appealed this assessment to the Workers' Compensation Board, which modified the WCLJ's decision, reducing the loss of wage-earning capacity to 45%. Claimant appealed the Board's determination, arguing it lacked substantial evidence. The Appellate Division, Third Department, affirmed the Board's decision, finding it was supported by substantial evidence and that the Board properly weighed medical and non-medical vocational factors.

Workers' CompensationPermanent Partial DisabilityWage-Earning CapacityMedical ImpairmentFunctional AbilityVocational FactorsAppellate ReviewIndependent Medical ExaminationSedentary WorkSurgical Technologist
References
6
Case No. 524528
Regular Panel Decision
May 17, 2018

What Did the WCAB Decide in Cuadra vs. Community Home Care?

Claimant, who suffered multiple work-related injuries in 1992 and 2011, appealed a Workers' Compensation Board decision classifying him with a 33% loss of wage-earning capacity and suspending awards due to a lack of labor market attachment. The Appellate Division, Third Department, affirmed the Board's determination regarding claimant's attachment to the labor market, finding it supported by substantial evidence of minimal job search efforts. However, the Court reversed the Board's assessment of a 33% loss of wage-earning capacity. It concluded that the medical evidence, extensive functional limitations, and limited vocational skills of the 55-year-old claimant did not support such a low impairment rating, necessitating a re-evaluation. The matter was remitted to the Workers' Compensation Board for further proceedings to correctly ascertain claimant's loss of wage-earning capacity.

Workers' Compensation LawPermanent Partial DisabilityLoss of Wage-Earning CapacityLabor Market AttachmentMedical ImpairmentVocational FactorsAppellate Division Third DepartmentRemittalBack InjuryNeck Injury
References
19
Case No. MISSING
Regular Panel Decision

How Were Death Benefits Handled in Bocanegra vs. Sun-Gro Commodities?

Bejaze Durakovic sued 'the Funds' under ERISA after being denied disability benefits, citing chronic back and neck pain from a 1999 car accident. The Social Security Administration had found her disabled in 2004. The Funds, relying on independent medical examiners Dr. Ludmilla Bronfin and Dr. Ira Rashbaum, and a vocational assessment by Apex Rehab Management, concluded she could perform sedentary work. Durakovic challenged this, arguing inadequate vocational assessment and conflict of interest. The court granted the Funds' motion for summary judgment, finding their decision was not arbitrary or capricious, despite some misgivings about the vocational assessment, emphasizing the broad discretion accorded to plan administrators.

ERISADisability Benefits DenialSummary Judgment GrantedArbitrary and Capricious ReviewConflict of InterestVocational CapacitySedentary EmploymentIndependent Medical ExaminationTreating Physician RuleSocial Security Disability
References
20
Case No. 2018 NY Slip Op 07814
Regular Panel Decision
Nov 15, 2018

Can a WCJ Be Disqualified for Appearance of Bias?

In the Matter of Varrone v Coastal Environment Group, the Appellate Division, Third Department, affirmed a Workers' Compensation Board decision. Claimant Joseph Varrone appealed the Board's modification of his loss of wage-earning capacity, reducing it from 50% to 15% following work-related injuries to his neck, right shoulder, and wrists. The Board considered the nature of his permanent partial disability, his functional capabilities, and vocational factors such as age, education, and skills. The court found substantial evidence, including the opinion of an independent medical examiner and claimant's own testimony, to support the Board's determination. This ruling upholds the Board's assessment of a 15% loss of wage-earning capacity.

Permanent Partial DisabilityWage-Earning CapacityAppellate ReviewMedical ImpairmentVocational FactorsSubstantial EvidenceClaimant AppealBoard Decision ModificationConstruction Project ManagerRepetitive Use Injury
References
4
Case No. 529642
Regular Panel Decision
Apr 01, 2021

What Were the Key Rulings in Torrez vs. SuperShuttle?

Nancy Kristl, employed by Rome City School District, established a workers' compensation claim in 2010 for neck, bilateral shoulder, and teeth injuries from a work-related accident. Following her retirement in 2017, a Workers' Compensation Law Judge classified her with a permanent partial disability and a 32.5% loss of wage-earning capacity, but denied indemnity benefits, stating she voluntarily withdrew from the labor market. The Workers' Compensation Board affirmed this decision. On appeal, the Appellate Division affirmed the Board's determination, finding substantial evidence supported the assessment of loss of wage-earning capacity based on medical impairment and vocational factors. The court declined to rule on the interlocutory issue of potential future indemnity benefits.

Permanent Partial DisabilityWage-Earning Capacity LossVoluntary RetirementLabor Market ReattachmentMedical Impairment AssessmentVocational Factors EvaluationAppellate Division AffirmanceWorkers' Compensation Law Judge DecisionIndependent Medical ExaminerCervical Spine Condition
References
7
Case No. MISSING
Regular Panel Decision

Why Was Removal Denied in Rush vs. California Correctional Institution?

Lorena Suette Duncan, an employee of Boeing Tennessee, Inc., sustained a left foot and knee injury in 1988. After knee surgery in February 1990, her orthopedic surgeon, Dr. Geron Brown, assessed a 15% disability to her left lower extremity and released her with restrictions. She was subsequently terminated after being unable to perform light-duty work. The trial court awarded Ms. Duncan 75% permanent partial disability to her left leg. Boeing appealed, arguing the evidence preponderated against the verdict and that vocational disability evidence was inadmissible for scheduled member injuries. The Supreme Court affirmed the trial court's judgment, clarifying that vocational disability evidence is indeed admissible as one factor in determining the loss of use of a scheduled member.

Permanent Partial DisabilityScheduled Member InjuryLeft Leg InjuryKnee InjuryVocational Disability EvidenceAdmissibility of EvidenceLoss of Earning CapacityWorkers' Compensation LawOrthopedic SurgeonForklift Operator
References
6
Case No. ADJ6692520
Regular
Jul 20, 2010

What Did the WCAB Clarify in Ontiveros vs. Savers Stores?

This case affirms a WCJ's decision finding the applicant sustained a 12% permanent disability. The applicant sought reconsideration, arguing the WCJ erred by limiting rebuttal evidence to "wage loss" rather than "loss of long-term earning capacity" and denying costs for a vocational expert. The Appeals Board, relying on precedent from *Ogilvie v. City and County of San Francisco*, held that the vocational expert's opinion was not substantial evidence to rebut the permanent disability rating. Therefore, the WCJ's denial of the vocational expert's costs was also affirmed.

Workers' Compensation Appeals BoardSupplemental Findings and Awardindustrial injurypermanent disabilityvocational expertwage lossloss of long-term earning capacitydiminished future earning capacity (DFEC)2005 Permanent Disability Rating ScheduleOgilvie v. City and County of San Francisco
References
4
Case No. MISSING
Regular Panel Decision
Oct 29, 2015

Why Was Reconsideration Denied in Gomez vs. Dorothy Stevens?

The case involves an appeal by an employer and its workers’ compensation carrier from a Workers’ Compensation Board decision. The Board affirmed a WCLJ ruling that the claimant, a landscaper injured in 2010, sustained a permanent partial disability and a 90% loss of wage-earning capacity. The WCLJ had considered various vocational factors, including the claimant's age, limited English skills, and low education, to determine a 10% wage-earning capacity and a $300 weekly benefit rate. The employer argued that vocational factors should not be used to determine wage-earning capacity for computing the compensation rate in permanent partial disability cases. However, the appellate court affirmed the Board's decision, distinguishing permanent from temporary disabilities and concluding that vocational factors are appropriately considered under Workers’ Compensation Law § 15 (5-a) when fixing wage-earning capacity in permanent partial disability cases without actual earnings, especially when the injury contributed to the loss.

permanent partial disabilitywage-earning capacityvocational factorsWorkers' Compensation Law § 15benefit durationcompensation ratephysical impairmentback surgerylimited English skillseducational background
References
10
Case No. MISSING
Regular Panel Decision

Why Was Reconsideration Dismissed in Sabino vs. Johnson Pump Company?

The petitioner sought review of her employment termination as a secretary by the Vocational Education and Extension Board of the County of Suffolk (VEEB) and requested reinstatement with back pay. She argued that she was discharged without the procedural protections afforded to civil servants under Civil Service Law § 75. VEEB contended that the petitioner was not covered by these protections. The Supreme Court ruled in favor of the petitioner, directing her reinstatement and back pay. The appellate court affirmed this decision, holding that the petitioner's position, though designated 'unclassified' by Suffolk County, did not fit any category under Civil Service Law § 35, thus classifying it as 'classified' and entitling her to § 75 protections. The court emphasized that the petitioner could not be denied these rights until a proper classification was established.

Civil Service LawEmployment TerminationReinstatementBack PayUnclassified ServiceClassified ServiceCivil Servant RightsDue ProcessArticle 78 ProceedingSuffolk County
References
5
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