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

Case No. 2025 NY Slip Op 02959
Regular Panel Decision
May 14, 2025

Weekes v. Tishman Tech. Corp.

Samuel Weekes, an employee, was injured while dismantling a scaffold at a construction site managed by Tishman Technologies Corporation. He sued, alleging violations of Labor Law § 240(1) and § 241(6). The Supreme Court initially denied Weekes's summary judgment motion and granted the defendants' cross-motion to dismiss, also denying Weekes's motion for leave to renew. The Appellate Division modified the Supreme Court's order, ruling that Tishman could be considered a statutory agent of the owner due to its control over safety. The court also found that Weekes's activity was covered under Labor Law § 240(1) and that triable issues of fact existed regarding the elevation-related hazard and proximate cause, thereby denying the defendants' cross-motion for summary judgment. The denial of Weekes's motion for leave to renew was affirmed, and part of the appeal from the November 4, 2020 order was dismissed as academic.

Construction AccidentLabor Law Section 240(1)Labor Law Section 241(6)Industrial Code ViolationScaffold SafetyElevation HazardSummary JudgmentStatutory AgentConstruction Manager LiabilityTriable Issues of Fact
References
36
Case No. MISSING
Regular Panel Decision

Kennedy v. Weeks Marine, Inc.

Martin R. Kennedy was injured while working on a barge chartered by his employer, American Bridge Company, from Week’s Marine, Inc. Kennedy fell from a wooden plank serving as the barge's gangway, which was supplied by American Bridge. He brought suit pursuant to 33 U.S.C. § 905(b), but Magistrate Judge David F. Jordan granted summary judgment for Week’s Marine, concluding they had no duty to provide a safe gangway under a bare boat charter. Kennedy appealed this judgment, arguing Week's Marine had knowledge of workers on the barge. The District Court affirmed the lower court's decision, ruling that Week's Marine, having relinquished control of the vessel in a bare boat charter, was not responsible for conditions arising after the charter or for providing a gangway, as the charterer, American Bridge, became the owner pro hac vice and bore that duty.

Bare Boat CharterMaritime LawSummary JudgmentLongshore and Harbor Workers' Compensation ActVessel Owner LiabilityCharterer LiabilityGangway SafetyDuty of CareOwner Pro Hac ViceAppellate Review
References
14
Case No. MISSING
Regular Panel Decision
Nov 29, 2001

Claim of Caiazza v. Eastman Kodak Co.

The claimant, a former machinist, developed skin cancer in 1990 and later lung and brain cancers in 2000, attributed to occupational exposure. Following his retirement in 2001, the employer conceded the lung and brain cancers were consequential to the initial skin cancer. A Workers' Compensation Law Judge (WCLJ) found the claimant permanently totally disabled and awarded weekly benefits of $300, based on the original skin cancer disablement date of February 27, 1986. The claimant sought Workers' Compensation Board review, arguing for an April 24, 2000 disablement date (diagnosis of lung/brain cancers) to receive higher benefits of $400/week. The Board affirmed the WCLJ's decision, citing the claimant's prior stipulation to modify the original claim for consequential injuries and established law that such awards are measured by rates at the time of the original injury. The appellate court affirmed the Board's decision, finding it was not unreasonable to rely on the claimant's agreement and that the award rate was supported by substantial evidence.

Occupational DiseaseWorkers' Compensation BenefitsDate of DisablementBenefit Rate CalculationConsequential InjurySkin CancerLung CancerBrain CancerPermanent Total DisabilityAppellate Review
References
4
Case No. ADJ13385386
Regular
Nov 17, 2020

ABRAHAM BERNAL vs. NIAGARA BOTTLING, LLC, SAFETY NATIONAL CASUALTY COMPANY

The Workers' Compensation Appeals Board (WCAB) granted reconsideration to amend the original decision regarding applicant Abraham Bernal's average weekly wage. The WCAB found the prior calculation of $\$1,383.39$ per week was erroneous as it diluted the applicant's earning capacity by using a lower hourly wage than his rate at the time of injury. The Board recalculated the average weekly wage based on actual hours worked, including overtime and holiday pay, at the applicant's established $\$27.00$ per hour rate. This resulted in an amended average weekly wage of $\$1,414.26$, increasing the temporary disability indemnity rate to $\$942.84$ per week.

ADJ13385386NIAGARA BOTTLING LLCSAFETY NATIONAL CASUALTY COMPANYVan Nuys District OfficePETITION FOR RECONSIDERATIONAVERAGE WEEKLY WAGESTEMPORARY DISABILITY INDEMNITYLABOR CODE § 4453(c)EARNING CAPACITYREGULAR WAGE
References
2
Case No. ADJ2773730 (VNO 0546451) ADJ8941760
Regular
Nov 25, 2019

ALVIN BLADES vs. CITY OF PASADENA

This case involves an applicant seeking reconsideration of a workers' compensation award primarily concerning the weekly payment rate for permanent disability. Initially, the Board affirmed an award but later amended it to reflect a stipulation for a $230 weekly rate. The applicant's subsequent petitions, including one allegedly misplaced by the WCAB system, argued for higher statutory rates of $270 and $310.50 per week. The Board granted further reconsideration, finding the applicant's petitions timely and agreeing that an oversight occurred regarding the correct payment rates, thus amending the award to reflect the higher statutory amounts.

Workers' Compensation Appeals BoardAlvin BladesCity of PasadenaADJ2773730ReconsiderationFindings of FactPermanent DisabilityLife PensionAttorney's FeesStipulated Award
References
1
Case No. MISSING
Regular Panel Decision

O'HARA v. Weeks Marine, Inc.

Plaintiffs Gerard O’Hara and Lisa O’Hara brought this suit under the Jones Act, general maritime law, and the Longshore and Harbor Workers’ Compensation Act for injuries sustained by Gerard O’Hara while performing work at the Staten Island Ferry pier on September 17, 1991. O’Hara was employed by defendant Collazo Contractors, a subcontractor of defendant Weeks Marine. Weeks Marine moved for summary judgment on plaintiffs’ Jones Act claims, asserting O’Hara did not meet the definition of a “seaman” on a “vessel in navigation.” The Court, after hearing oral argument and reserving decision, applied tests from Chandris, Inc. v. Latsis and Tonnesen v. Yonkers Contracting Co. to evaluate seaman status and vessel in navigation status. The court found that O'Hara did not meet the requirements for seaman status, concluding that his duties as a dockbuilder did not contribute to the function of the barge or its mission, and he lacked a substantial connection to a vessel in navigation. Therefore, the defendant's motion for summary judgment was granted, and plaintiffs' Jones Act claims were dismissed.

Jones ActSeaman StatusSummary JudgmentMaritime LawVessel in NavigationDockbuilderLongshore and Harbor Workers’ Compensation ActWork PlatformNegligenceEmployment Injury
References
8
Case No. ADJ2610305 (WCK 63412) ADJ3981181 (WCK 63413) ADJ1135990 (OAK 339001)
Regular
Mar 24, 2009

CATHY D. KRAUS vs. VETERINARY SURGICAL ASSOCIATES, FIREMAN'S FUND

This case involves a dispute over the correct temporary disability indemnity rate for an applicant injured in 2001. The applicant's original agreed rate was $420 per week based on $630 average weekly earnings, but a subsequent injury in 2006 led to payments at $480 per week. The WCJ awarded an indemnity rate of "at least $480 per week" for the 2001 injury, citing post-injury earnings as evidence of earning capacity. The Appeals Board granted reconsideration, rescinded the award, and remanded for further proceedings. The Board emphasized that post-injury earnings should only be considered if scheduled or reasonably anticipated at the time of the 2001 injury, per *Kyllonen*, and noted insufficient analysis in the WCJ's decision.

Workers' Compensation Appeals BoardReconsiderationFindings and AwardTemporary Disability IndemnityAverage Weekly EarningsIndustrial InjuryShouldersLabor Code § 4656(c)StipulationsAgreed Medical Evaluator
References
6
Case No. MISSING
Regular Panel Decision

Vandewalker v. Snowball Tree Farm, Inc.

Claimant sustained a left foot injury in November 1982, leading to amputation and subsequent surgeries. The Workers' Compensation Law Judge (WCU) initially found a 70% schedule loss of use, later increasing it to 100% after further medical examination in August 1987. The WCU awarded compensation at $105 per week, with a temporary total disability rate of $183.33 for a specific period. The employer appealed, and the Workers' Compensation Board modified the award, asserting the permanent partial disability rate of $105 per week applied for the entire schedule loss. Claimant appealed this modification, arguing for the higher temporary total disability rate during the protracted healing period. The court affirmed the Board's decision, holding that the injury was classified as a permanent partial disability dating from the accident, and therefore the maximum permanent partial disability rate of $105 per week was appropriate for the entire award period.

Schedule Loss of UsePermanent Partial DisabilityTemporary Total DisabilityAverage Weekly WageAmputationBenefit ModificationAppellate ReviewMedical Examiner ReportJudiciary LawFoot Injury
References
9
Case No. ADJ4258585 (OXN 0130492) ADJ220258 (OXN 0130487)
Regular
Apr 17, 2018

ENRIQUE HERRERA vs. MAPLE LEAF FOODS, U.S. FIRE INSURANCE COMPANY, ALEA NORTH AMERICAN INSURANCE COMPANY

This notice informs parties that the Workers' Compensation Appeals Board (WCAB) intends to admit its rating instructions and a disability rater's recommended permanent disability rating into evidence. The WCAB previously granted reconsideration for further study. Parties have seven days to object to the rating instructions or the recommended rating, with specific procedures for addressing objections. If no timely objection is filed, the matters will be submitted for decision thirty days after service.

WORKERS' COMPENSATION APPEALS BOARDPermanent Disability RatingDisability Evaluation UnitRating InstructionsRecommended Permanent Disability RatingJoint RatingReconsiderationObjectionRater Cross-ExaminationRebuttal Evidence
References
0
Case No. ADJ4173733 (GRO 0033459) ADJ7235201
Regular
May 08, 2014

DONALD LUTES vs. NEW WEST COOLING, INC., STATE COMPENSATION INSURANCE FUND

This case involved an appeal by SCIF regarding permanent disability indemnity rates. The WCJ initially awarded $230/week for both case numbers, but SCIF argued the 2004 injury date in ADJ4173733 limited the rate to $200/week. The WCJ acknowledged this oversight and recommended the amendment. The Appeals Board granted reconsideration, affirming the award but amending the indemnity rate for ADJ4173733 to $200/week, totaling $18,100, and adjusting attorney fees accordingly.

Petition for ReconsiderationJoint Findings and AwardPermanent DisabilityIndustrial InjuryWorkers' Compensation Appeals BoardWCJState Compensation Insurance FundDate of InjuryPermanent Disability IndemnityAttorney Fees
References
0
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