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

Case No. ADJ9267687
Regular
Apr 02, 2019

NORMA DE JESUS ZARAGOZA vs. FRANCHISE INVESTMENT CORPORATION dba ROUND TABLE PIZZA and TRUCK INSURANCE EXCHANGE/FARMERS INSURANCE GROUP, EMPLOYERS COMPENSATION INSURANCE GROUP

The Workers' Compensation Appeals Board imposed a $500 sanction against applicant's attorney, Peter T. Nguyen, and his law firm. This sanction arose from attaching over 325 pages of exhibits, many not in evidence, to a petition, violating WCAB rules regarding page limits and proper exhibit submission. The attorney's claim of inexperience was rejected, as attorneys are responsible for knowing and adhering to procedural rules, and zealous advocacy does not excuse rule violations. The Board also noted the attorney's failure to adequately cite the trial record in support of his petition.

WCABRemovalSanctionsLabor Code section 5813WCAB Rule 10561WCAB Rule 10842WCAB Rule 10845WCAB Rule 10856Petition for ReconsiderationExhibits
References
9
Case No. ADJ2623740
Regular
Dec 13, 2010

MARTHA HERNANDEZ vs. MARRIOTT INTERNATIONAL, INC.

The Appeals Board rescinded its Notice of Intention to Impose Sanctions against CMS Network, Inc. and its representatives, Dominic D. Arguello and Randal Hollien. Initially, sanctions were considered due to repeated misstatements of law concerning a lien claimant's burden of proof in petitions for reconsideration. Although zealous advocacy is not an excuse for legal misstatements, the Board found no intent to mislead and acknowledged the respondents' understanding of correct legal precedent. The matter is returned to the trial level, with the Board emphasizing that lien claimants bear the burden of proving the reasonableness of their fees, citing precedent like *Kunz* and *Tapia*.

WCABRemovalSanctionsLien claimant burden of proofPetition for reconsiderationHearing representativesZealous advocacyMisstatements of lawEn banc decisionsBinding precedent
References
8
Case No. MISSING
Regular Panel Decision

Brown v. Xerox Corp.

Plaintiff Earl Brown brought an action against Xerox Corporation, alleging race-based employment discrimination and retaliation. He claimed that his transfer from Vice President of HR in 2008 was due to his advocacy for minority employees and concerns about a potentially discriminatory assessment tool. The court, however, found no basis for his claims, concluding that his advocacy activities fell within his job duties and lacked a causal link to the adverse employment action. Furthermore, defendant Xerox provided substantial evidence of legitimate, non-discriminatory reasons for his transfer, including poor performance reviews and multiple complaints regarding his management style. Consequently, the court granted summary judgment in favor of the defendant, dismissing all of Plaintiff's remaining claims.

Employment DiscriminationRetaliationSummary JudgmentTitle VIIRace DiscriminationHuman ResourcesWorkplace ConductPerformance ReviewManagerial StyleProtected Activity
References
43
Case No. MISSING
Regular Panel Decision

Mishk v. Destefano

Gerald Mishk, a member of the City of Middletown Police Department, initiated an action against the City and several officials under 42 U.S.C. §§ 1988 and 1985, claiming his First Amendment rights were violated through retaliation for his speech. The alleged retaliatory actions stemmed from his recommendation against hiring an individual, his advocacy for forming a Narcotics Unit, and his statements during a promotion interview. The defendants moved for summary judgment, asserting qualified immunity for individual defendants. The District Court granted the defendants' motion, concluding that Mishk's interview statements and hiring recommendation did not pertain to matters of public concern. Furthermore, the court found insufficient evidence to establish that his advocacy for a Narcotics Unit led to any adverse employment action, nor did his unit transfer or denial of promotion constitute actionable retaliation.

First AmendmentRetaliation ClaimSummary JudgmentPublic Concern DoctrineGovernment Employee SpeechPolice DepartmentEmployment Law42 U.S.C. Section 198342 U.S.C. Section 1985Qualified Immunity
References
42
Case No. 2022 NY Slip Op 03553 [207 AD3d 117]
Regular Panel Decision
Jun 02, 2022

Sullivan v. New York State Joint Commn. on Pub. Ethics

Katherine C. Sullivan and Kat Sullivan LLC challenged the New York State Joint Commission on Public Ethics (JCOPE) regarding the application of the Lobbying Act to their advocacy efforts for the Child Victims Act. Plaintiffs asserted the Act was unconstitutional on its face due to First Amendment violations, vagueness, and overbreadth, and also challenged its constitutionality as applied to their activities, alongside the validity of JCOPE's regulations. The Appellate Division affirmed the dismissal of the facial challenges to the Lobbying Act, declaring it constitutional, and also upheld the dismissal of the challenge to JCOPE's regulations. However, the court reversed the Supreme Court's dismissal of the 'as-applied' challenges, concluding that a justiciable and ripe controversy existed. This allows for judicial review of JCOPE's interpretation and enforcement against plaintiffs' past and threatened future advocacy.

Lobbying ActFirst AmendmentFreedom of SpeechOverbreadth DoctrineVagueness DoctrineJusticiabilityRipenessDeclaratory JudgmentAppellate ReviewChild Victims Act
References
77
Case No. VNO 0450952
Regular
Jan 13, 2007

MARIO CHAMBERS vs. BLUE WATER PLUMBING & FIRE / PROTECTION ADVOCACY, AMERICAN HOME ASSURANCE

The Workers' Compensation Appeals Board (WCAB) granted reconsideration to a lien claimant after their lien was disallowed without a hearing, finding the administrative law judge's (ALJ) order to be procedurally defective. The WCAB held that the claimant was entitled to due process, including notice and an opportunity to be heard on the merits of their claim, which was not afforded. Consequently, the WCAB rescinded the disallowance order and returned the case to the trial level for further proceedings, also noting the possibility of sanctions for the claimant's failure to appear.

Workers Compensation Appeals BoardLien ClaimantReconsiderationDisallowed LienAdministrative Law JudgeCompromise and ReleaseDue ProcessNoticeOpportunity to Be HeardSanctions
References
3
Case No. ADJ1298920
Regular
Dec 05, 2011

TRUDY LEE vs. CHILDREN'S HOSPITAL, ZENITH INSURANCE COMPANY

In this workers' compensation case, the defendant filed a petition to disqualify the Administrative Law Judge (WCJ) based on alleged enmity and bias demonstrated by comments made at a lien trial. The WCJ acknowledged being overly zealous in settlement discussions and apologized for any outburst but denied bias or prejudice. The Workers' Compensation Appeals Board reviewed the record and found no evidence of bias or prejudgment by the WCJ. Therefore, the petition for disqualification was denied.

WCABPetition for DisqualificationAdministrative Law JudgeEstrinLien TrialEnmityBiasUnqualified OpinionReport and RecommendationOverly Zealous
References
0
Case No. ADJ886832 (VNO 0463817) ADJ7239162 ADJ7559804
Regular
Apr 17, 1977

MARGOT LOWE vs. SAV-ON DRUGS and SEDGWICK CMS, CVS and GALLAGHER BASSETT

The Appeals Board dismissed Sav-On Drugs' Petition for Reconsideration because it was not taken from a "final" order, but rather an interlocutory procedural decision. The Board also denied the petition for removal, finding no showing of substantial prejudice or irreparable harm. This denial does not preclude Sav-On from raising its objections in a future petition for reconsideration of a final decision. The Board specifically noted that the disputed advocacy letter to the Agreed Medical Evaluator did not appear to affect the AME's findings.

Petition for ReconsiderationDenying RemovalFinal OrderSubstantive RightThreshold IssueInterlocutory OrderAgreed Medical EvaluatorAdvocacy LetterLabor Code Section 4062.3Substantial Prejudice
References
6
Case No. ADJ10887066 ADJ10887074
Regular
Nov 14, 2018

RAUL JUAREZ vs. EB DESIGN, INC., THE HARTFORD INSURANCE

This case concerns defendant's ex parte communication with a QME, specifically sending surveillance video and an advocacy letter without proper notice. The WCAB granted removal, rescinded the trial judge's order striking the QME report, and remanded the case. The Board clarified that WCAB Rule 10507 extends the timeframe for applicant to object to non-medical records, but not the defendant's initial service deadline under Labor Code section 4062.3(b).

RemovalJoint Findings of FactOrder and Opinion on DecisionQualified Medical EvaluatorQME panelorthopedic surgerystrickeninadmissibleLabor Code section 4062.3ex parte communication
References
9
Case No. ADJ11262392
Regular
Mar 08, 2019

JUAN CARLOS GONZALEZ vs. REAL TIME STAFFING SERVICES, LLC, EXCEL INSURANCE AMERICA, INC.

The Workers' Compensation Appeals Board (WCAB) dismissed the applicant's petition for reconsideration because it was not filed from a final order. However, the WCAB granted the applicant's petition for removal, rescinded the WCJ's findings, and returned the case to the trial level. This action was taken because the record was incomplete, lacking crucial medical records and evidence of service, preventing meaningful review and a proper decision. The WCAB emphasized the need for a developed record and encouraged the parties to resolve the dispute regarding the advocacy letter informally.

Workers' Compensation Appeals BoardPetition for ReconsiderationPetition for RemovalPanel Qualified Medical EvaluatorPQME advocacy letterSanctionsFindings and Notice of IntentInterlocutory orderFinal orderAdmitted evidence
References
9
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