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

Case No. 2018 NY Slip Op 06537 [165 AD3d 667]
Regular Panel Decision
Oct 03, 2018

Matter of Heritage Mech. Servs., Inc. v. Suffolk County Dept. of Pub. Works

This case involves an appeal by Heritage Mechanical Services, Inc. (petitioner) from a judgment denying its petition to annul a determination by the Suffolk County Department of Public Works (DPW). The dispute stemmed from a general construction contract awarded to Posillico/Skanska, JV for a waste water treatment plant upgrade. Heritage was listed as a subcontractor for HVAC work, but a disagreement arose over the agreed-upon amount, with Heritage claiming a higher price for alternates not included in the initial bid figure. DPW approved Posillico's request to perform the HVAC work itself, citing Heritage's refusal as a 'legitimate construction need' under General Municipal Law § 101 (5). The Appellate Division, Second Department, affirmed the Supreme Court's judgment, finding DPW's determination was not arbitrary and capricious, affected by an error of law, or an abuse of discretion, and thus dismissed the proceeding.

Public Works ContractSubcontractor DisputeGeneral Municipal LawCPLR Article 78Administrative ReviewArbitrary and CapriciousProject Labor AgreementHVAC SubcontractBid DisputeContractual Interpretation
References
1
Case No. ADJ6884562
Regular
Oct 04, 2010

ERIC KRUSE vs. CITY OF SAN RAFAEL, Permissibly Self-Insured

This case concerns whether a 15% reduction in permanent disability indemnity applies when an employer offers an injured employee regular work after their condition is permanent and stationary. The applicant, a parking enforcement officer, sustained a neck and elbow injury and was temporarily disabled before returning to his regular job. The employer offered regular work after the applicant's condition became permanent and stationary, but the applicant had already returned to his normal duties. The majority found that since there was no indication of permanent disability prior to the employer's offer, all permanent indemnity was payable after the offer, entitling the employer to the reduction. However, a dissenting commissioner argued that the offer lacked practical meaning as the applicant had already returned to work and that no weekly payments remained after the offer to be reduced.

Workers' Compensation Appeals BoardEric KruseCity of San Rafaelparking enforcement officerindustrial injuryneck injuryright elbow injurytemporary total disabilitypermanent and stationaryoffer of regular work
References
0
Case No. ADJ2900532 (LAO 0867800)
Regular
Feb 25, 2011

MIGUEL SOTO vs. PIZZA HUT / YUM! BRANDS; ACE INSURANCE COMPANY, Administered by GALLAGHER BASSETT CORONA

The Appeals Board vacated the prior award and remanded the case for a new decision on the application of Labor Code sections 4658(d)(2) and (d)(3)(A). The Board clarified that the 60-day period for offering modified work begins when the employer receives notice that the employee's disability is permanent and stationary, not from the physician's opined date. The Board also noted that the employer's offer must be in the form and manner prescribed by the administrative director, raising a question about the validity of an offer lacking a preparer's signature. Finally, the Board affirmed the substantiality of the medical evidence used by the trial judge and instructed the judge to correct a clerical error in attorney's fees.

Permanent and Stationary DateLabor Code Section 4658Modified WorkAlternative WorkTimeliness of OfferAdministrative Director RegulationsSubstantial Medical EvidenceAttorney's FeesPetition for ReconsiderationIndustrial Injury
References
15
Case No. ADJ8981638
Regular
Jan 19, 2019

ANTHONY INGRASSI vs. STATE OF CALIFORNIA, legally uninsured, adjusted by STATE COMPENSATION INSURANCE FUND

This case involves an applicant seeking workers' compensation benefits for injuries to his left shoulder, lumbar spine, right hip, and left elbow. The defendant sought reconsideration of the initial award, arguing the $36\%$ permanent disability award should only be paid over 173 weeks and that the Labor Code section 4658(d)(2) increase was unwarranted. The Appeals Board amended the award to reflect 173 weeks for the permanent disability and affirmed the $4658(d)(2)$ increase, finding the defendant failed to comply with statutory notice requirements for return-to-work offers after the applicant's medical condition became permanent and stationary, despite the applicant's brief return to work. One Commissioner dissented, arguing the $4658(d)(2)$ increase should not apply as the defendant's failure to issue a second notice was form over substance given the applicant was already working full duty.

Labor Code Section 4658(d)(2)Permanent Disability AwardApportionmentAgreed Medical EvaluatorMaximum Medical ImprovementPermanent Impairment RatingsNotice of Offer of Regular WorkDWC-AD 10118Substantial ComplianceReturn to Work Incentives
References
13
Case No. VNO 523244
Regular
Aug 04, 2008

ANGIE JAUREGUI vs. MERCY SOUTHWEST HOSPITAL

This case involves an employer seeking reconsideration of a workers' compensation award for an injured nurse. The employer argued their modified work offer should have reduced the permanent disability award, but the Board denied reconsideration. The Board determined the employer's work offer was not a bona fide modified work offer, and thus did not qualify for the statutory reduction.

Permanent and stationaryMedical-legal reportWork restrictionsModified workAlternative workLabor Code Section 4658(d)Permanent disability awardPetition for reconsiderationFindings and AwardWCJ
References
1
Case No. ADJ4192266 (VNO 0544329)
Regular
Mar 07, 2011

JOHN HENRY vs. CITY OF SANTA MONICA, Permissibly Self-Insured

This case involves a police officer's workers' compensation claim for multiple injuries. The applicant was awarded 85% permanent disability and an additional 15% increase due to the employer's failure to offer suitable work within 60 days of the applicant reaching permanent and stationary status. The defendant sought reconsideration, arguing it had offered work and that the applicant's post-injury earnings rebutted the diminished future earning capacity (DFEC) presumption. The Appeals Board granted reconsideration, rescinded the prior award, and returned the case for further proceedings. The Board found the employer's work offer was invalid because the applicant had not reached permanent and stationary status for all his injuries at the time of the offer. Furthermore, the defendant failed to adequately rebut the DFEC presumption by not presenting comprehensive evidence regarding earning capacity beyond just post-injury earnings.

Workers' Compensation Appeals BoardReconsiderationFindings and AwardPermanent DisabilitySection 4658(d)Diminished Future Earning CapacityDFECQualified Medical EvaluatorQMEAgreed Medical Examiner
References
4
Case No. 2017 NY Slip Op 08382 [155 AD3d 1049]
Regular Panel Decision
Nov 29, 2017

Matter of Soliman v. Suffolk County Dept. of Pub. Works

Nader I. Soliman, a Senior Civil Engineer for Suffolk County Department of Public Works, was terminated after an arbitration award found him guilty of misconduct for accessing unauthorized, sexually explicit websites during work hours. Soliman petitioned the Supreme Court, Suffolk County, to vacate the arbitration award, but the court denied the petition, dismissed the proceeding, and confirmed the award. On appeal, the Appellate Division, Second Department, affirmed the Supreme Court's judgment, finding that Soliman failed to demonstrate by clear and convincing evidence that the arbitration award was irrational or that the arbitrator exceeded their powers.

MisconductArbitration AwardVacaturCPLR Article 75Appellate ReviewPublic EmploymentTerminationEmployee MisconductRationality of AwardArbitrator Powers
References
10
Case No. ADJ17550375; ADJ17550386
Regular
Jul 29, 2025

JOHN RICHARD SEDANO vs. LIVE ACTION GENERAL ENGINEERING INC.; NATIONAL CASUALTY INSURANCE

The Workers' Compensation Appeals Board (WCAB) granted reconsideration of a 'Findings of Fact, Award & Order' (F&A) issued on March 24, 2025, by a WCJ, and issued a Notice of Intent to impose sanctions. The WCJ had found that the defendant did not provide a bona fide offer of modified duty to the applicant, John Richard Sedano, and awarded temporary disability. Defendant argued that temporary disability should not have been awarded because an offer of work was made, the award lacked substantial medical evidence, and the WCJ failed to apply apportionment under Labor Code sections 4663 and 4664. The WCAB affirmed the March 24, 2025 F&A and imposed sanctions of $750.00$ jointly and severally against the employer, insurer, administrator, and their attorneys for errors in the petition for reconsideration, including failure to cite the evidentiary record, improperly attaching documents, raising new issues, and citing non-existent legal authority. The Board also found the defendant was equitably estopped from asserting the modified work offer as a bar to temporary disability, and that the modified work offer was independently invalid due to a conflict in medical restrictions.

Temporary DisabilityModified DutyBona Fide OfferApportionmentLabor Code Sections 4663Labor Code Sections 4664SanctionsEquitable EstoppelMaximum Medical ImprovementWork Restrictions
References
10
Case No. ADJ8869367
Regular
Nov 07, 2013

LUIS CENDEJAS vs. AMERICAN LABOR POOL, INC., OLD REPUBLIC GENERAL INSURANCE CORPORATION, GALLAGHER BASSETT SERVICES, INC.

The Workers' Compensation Appeals Board denied the defendant's petition for reconsideration. The defendant argued that they made a valid offer of modified work, relieving them of temporary disability obligations. However, the Board affirmed the judge's finding that the work offers were not sufficiently clear, lacked specificity regarding physical appropriateness, and failed to convey the exact terms to the applicant. Consequently, the employer did not meet their burden of proving a valid offer of modified work was made.

Petition for ReconsiderationModified Work OfferTemporary DisabilityPhysical AppropriatenessDoctor's RestrictionsVocational RehabilitationSupplemental Job Displacement VoucherOffer ValidityCommunication of OfferEmployer's Burden of Proof
References
2
Case No. 533112
Regular Panel Decision
Mar 17, 2022

Matter of Reyes v. H & L Iron Works Corp.

A claimant appealed a Workers' Compensation Board decision which found he violated Workers' Compensation Law § 114-a and permanently disqualified him from future indemnity benefits. The claimant, Leonel Reyes, sustained work-related injuries in 2016 and received benefits. However, he failed to fully disclose his disc jockey activities and the physical nature of this work to the Board, carrier, and examining physicians while collecting benefits. Surveillance videos showed him lifting heavy equipment, contradicting his testimony. The Workers' Compensation Board affirmed the WCLJ's finding of a violation and the imposition of both mandatory and discretionary penalties. The Appellate Division, Third Department, affirmed the Board's decision, concluding that substantial evidence supported the violation and that the permanent forfeiture of indemnity benefits was not a disproportionate penalty given the claimant's multiple egregious misrepresentations.

Workers' Compensation Law § 114-aFalse RepresentationIndemnity BenefitsPermanent DisqualificationUndisclosed EmploymentDisc JockeyMaterial MisrepresentationSubstantial EvidenceWitness CredibilityDiscretionary Penalty
References
7
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