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

Case No. 2015-07-0467
Regular Panel Decision
May 06, 2016

Parrish, Robert v. Digit Dirt Worx

This case involves an expedited hearing initiated by employee Robert Parrish, who sought additional temporary disability benefits, arguing that his weekly compensation rate was incorrectly calculated by his employer, Digit Dirt Worx. Mr. Parrish claimed he worked only twenty weeks, not the twenty-three weeks calculated by Digit Dirt Worx. The employer, Digit Dirt Worx, argued the request for an expedited hearing was untimely and that their compensation rate calculation was correct, utilizing a period of twenty-three weeks and five days, which resulted in a higher rate for Mr. Parrish than his own calculations. The Court addressed the timeliness issue, excusing the ten-day late filing due to Mr. Parrish's clear intent to prosecute the claim. However, on the merits, the Court denied Mr. Parrish's claim, finding insufficient evidence to support his argument for a different compensation rate and concluding that Digit's calculation was consistent with Tennessee law.

Expedited HearingTemporary Disability BenefitsWeekly Compensation RateWage CalculationTimeliness of FilingDispute Certification NoticeAverage Weekly WageFortuitous CircumstanceTruck Driver EmploymentFile Review Decision
References
7
Case No. MISSING
Regular Panel Decision

Claim of Reasoner v. New York State Department of Motor Vehicles

This appellate decision addresses whether the Workers' Compensation Board correctly calculated the claimant's average weekly wage. The employer and carrier argued that due to the claimant's limited employment as an MVRSAB member, the compensation rate should be based on actual earnings, not the 200 multiple outlined in Workers’ Compensation Law § 14 (3). The Board determined that neither Workers’ Compensation Law § 14 (1) nor (2) was applicable, thus applying Workers’ Compensation Law § 14 (3). It also found no evidence that the claimant voluntarily limited participation in the labor market, based on testimony of availability and continued business operation. The court affirmed the Board's calculation.

average weekly wageworkers' compensation lawcompensation rateemployment limitationlabor marketstatutory interpretationappellate reviewMVRSAB member
References
8
Case No. 08-06-00170-CV
Regular Panel Decision
Jun 30, 2008

Fireman's Fund Insurance Co. v. Weldon W. Weeks

This case concerns an appeal by Fireman’s Fund Insurance Company against a district court's judgment favoring workers' compensation claimant, Weldon Weeks. The core dispute revolved around the legal sufficiency of evidence for Weeks' impairment rating and maximum medical improvement (MMI) date, following an on-the-job spinal injury and subsequent fusion surgery. The district court had adopted a 25 percent impairment rating and April 17, 2002 MMI date, based on Dr. Chapman's report, which considered the spinal fusion surgery in violation of AMA Guides for impairment ratings. The Court of Appeals, affirming that surgery is not a permissible factor under the AMA Guides' Injury Model, found Dr. Chapman's reliance on the spinal fusion legally insufficient. Consequently, the appellate court reversed the district court’s judgment and rendered judgment for Fireman’s Fund, effectively upholding the Division's original decision of a 10 percent impairment rating and January 28, 2002 MMI date.

Impairment RatingMaximum Medical Improvement (MMI)Spinal Fusion SurgeryAMA GuidesLegal SufficiencyAppellate ReviewTrial Court JudgmentDesignated DoctorTexas Labor CodeDiagnosis-Related Estimate (DRE)
References
13
Case No. MISSING
Regular Panel Decision

Fireman's Fund Insurance Co. v. Weeks

This case involves an appeal by Fireman’s Fund Insurance Company against a district court’s judgment in favor of workers’ compensation claimant, Weldon Weeks. Weeks sustained a lower back injury on the job, leading to spinal fusion surgery. The core dispute centers on Weeks’s Maximum Medical Improvement (MMI) date and impairment rating, with the district court adopting Dr. Chapman’s findings of a 25 percent impairment and an MMI date of April 17, 2002. Fireman's Fund argued that Dr. Chapman’s reliance on spinal fusion surgery to determine impairment was legally insufficient under the AMA Guides, fourth edition. The appellate court agreed, reversing the district court's judgment and rendering judgment for Fireman’s Fund, thereby affirming the Division's earlier decision which had adopted Dr. Singleton's 10 percent impairment rating and January 28, 2002 MMI date.

workers' compensationimpairment ratingmaximum medical improvementspinal fusionAMA Guideslegal sufficiencyDRE categorylumbar radiculopathyappellate reviewTexas Labor Code
References
13
Case No. MISSING
Regular Panel Decision

Lyublinsky v. Barnhart

A 73-year-old disabled plaintiff, who has received Social Security Disability (SSD) benefits since 1993, brought this action to review the Commissioner's final determination concerning his benefit rate calculation. The plaintiff argued that his benefit rate was improperly calculated, citing discrepancies in earnings records and claims of discrimination. The case has a lengthy procedural history, including multiple remands from the District Court due to issues like denial of a fair hearing and lack of legal representation. The Court conducted a de novo review of the Social Security Administration's (SSA) benefit calculations, utilizing the Average Indexed Monthly Earnings (AIME) method, and found no mathematical errors. Ultimately, the plaintiff failed to present compelling evidence to disprove the SSA's records, which are considered conclusive after a statutory period. Consequently, the Commissioner's motion for judgment on the pleadings was granted, the complaint was dismissed, and the Administrative Law Judge's (ALJ) decision was affirmed.

Social Security DisabilityBenefit CalculationAIME MethodAdministrative Law JudgePro Se PlaintiffFederal Court ReviewEarnings RecordsBurden of ProofRemandJudgment on the Pleadings
References
3
Case No. MISSING
Regular Panel Decision

Goodman v. HBD Industries, Inc.

This workers' compensation case addresses whether weeks an employee spends on strike should be included in the calculation of their average weekly wage. Applicant Phillip Goodman was injured shortly after participating in a 28-week strike against his employer, HBD Industries, Inc. The trial court excluded the strike period, resulting in a higher weekly compensation rate for Goodman's permanent partial disability. On appeal, the Supreme Court of Tennessee reversed the trial court's calculation, reaffirming the precedent that voluntary absences, including strikes, must be included. The Court affirmed the award of benefits but modified the weekly compensation rate to reflect the proper calculation, incorporating the strike weeks.

Workers' CompensationAverage Weekly WageStrikeVoluntary AbsencePermanent Partial DisabilityTennessee LawEmployment RelationshipStatutory InterpretationJudicial PrecedentAppellate Review
References
8
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. MISSING
Regular Panel Decision

Claim of Whittaker v. Central Square Central School District

The claimant appealed the Workers’ Compensation Board's calculation of his average weekly wage following a work-related injury to his right elbow and hand. The Board used a 200 multiplier under Workers’ Compensation Law § 14 (3), which the claimant contended did not accurately reflect his annual salary as a school bus driver working 10 months a year. The court found that applying a 200 multiplier, although a minimum, was erroneous as it did not rationally correspond to the claimant's actual work days and resulted in an average weekly wage that was not fair or reasonable. Therefore, the court reversed the Board's decision and remitted the case back to the Workers’ Compensation Board for further proceedings consistent with its ruling.

Average Weekly WageWorkers' Compensation Law200 MultiplierAnnual Salary CalculationSchool Bus DriverWork-Related InjuryJudicial ReviewError in CalculationRemittal
References
1
Case No. MISSING
Regular Panel Decision

Pan American Fire & Casualty Co. v. Hill

This workers' compensation case addresses the issues of good cause for the late filing of a claim and the claimant's wage rate. Mack Hill, an independent oil company owner, suffered a broken hip in 1971 and filed his claim in 1973, beyond the six-month statutory period. He argued good cause, citing assurances from the compensation carrier's adjuster that "everything would be taken cared of" and continued payment of medical expenses and weekly benefits. The jury found in favor of Mr. Hill on the good cause issue and determined his average daily wage. The appellate court affirmed the jury's finding on good cause, stating that the adjuster's representations and actions were sufficient evidence to support the jury's findings. However, the court sustained the appellant's points of error regarding the wage rate, finding insufficient evidence to support the jury's wage rate calculation and noting that the parties had stipulated to a weekly compensation rate before the Industrial Accident Board. Consequently, the court reversed the trial court's judgment and remanded the case for entry of judgment based on the stipulated weekly compensation rate.

Workers' CompensationLate Claim FilingGood CauseWage Rate DisputeIndustrial Accident BoardTexas LawJury FindingsEvidence SufficiencyStipulation of PartiesAppellate Review
References
14
Case No. ADJ8820335
Regular
Apr 17, 2017

RAHSHON LOYD vs. DOLAN CONCRETE CONSTRUCTION, OLD REPUBLIC CONTRACTORS INSURANCE GROUP, GALLAGHER BASSETT SERVICES, INC.

This case concerns the calculation of applicant Rahshon Loyd's average weekly earnings (AWE) for temporary disability indemnity following a $100\%$ permanent and total industrial injury. The defendant argued the WCJ erred by calculating AWE based on a presumed 40-hour work week, instead of applicant's actual irregular earnings history. The Appeals Board granted reconsideration, finding that while applicant's earning capacity was relevant, his historical earnings as a union cement mason, even after attaining journeyman status, did not consistently reflect a 40-hour work week. Consequently, the Board amended the decision to calculate AWE as an average of his weekly wage over the three years prior to injury, resulting in a reduced temporary disability rate.

Workers' Compensation Appeals BoardAverage Weekly EarningsTemporary Disability IndemnityLabor Code Section 4453Earning CapacityUnion Cement MasonJourneymanPermanent and Total DisabilityVocational EvaluatorPetition for Reconsideration
References
4
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