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Case Law Database

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

Case No. 2014-2225 K C
Regular Panel Decision
Oct 27, 2017

Acupuncture Approach, P.C. v. NY Cent. Mut. Fire Ins. Co.

This case concerns an appeal from an order of the Civil Court of the City of New York, Kings County, relating to assigned first-party no-fault benefits. Acupuncture Approach, P.C., as assignee, sought to recover sums from NY Central Mutual Fire Ins. Co. The defendant moved for summary judgment, arguing timely payment according to the workers' compensation fee schedule for some claims, and lack of medical necessity for others. The plaintiff cross-moved for summary judgment. The Appellate Term modified the Civil Court's order, denying the defendant's motion for summary judgment on claims totaling $3,495, $2,695, and $1,965, due to the defendant's failure to demonstrate timely denial. The Appellate Term affirmed the reduction of the amount in controversy for other claims and the denial of the plaintiff's cross-motion.

No-Fault BenefitsSummary JudgmentAppellate ReviewInsurance ClaimsWorkers' Compensation Fee ScheduleMedical NecessityTimely DenialCivil Court OrderAssignee ClaimsPreclusion
References
4
Case No. No. 44
Regular Panel Decision
May 24, 2022

The People v. Marc Mitchell

Marc Mitchell, the defendant, appealed his conviction for fraudulent accosting, arguing that the term 'accost' requires a physical, aggressive approach to a specific individual. The New York Court of Appeals rejected this narrow interpretation, stating that dictionaries from the statute's enactment defined 'accost' as 'to approach,' 'speak to first,' or 'address.' The Court found the complaint sufficient, as Mitchell blocked a Manhattan sidewalk with milk crates, requiring pedestrians to walk around him, and asked passing pedestrians to 'Help the homeless,' while allegedly misrepresenting where donations would go. The Court concluded that his actions, including blocking the sidewalk and calling out, constituted accosting. The dissenting opinion argued that the majority's interpretation was too broad, potentially criminalizing protected speech, and that 'accost' implies a more assertive, targeted contact, which was not present in Mitchell's actions. The Appellate Term's order was affirmed.

fraudulent accostingstatutory interpretationNew York Court of Appealsmisdemeanor complaintfacial sufficiencyactus reusmens reaconfidence gamestreet swindlelegislative intent
References
58
Case No. OAK 0284707, OAK 0291936
Regular
Jan 29, 2008

SHARON TAKAHASHI vs. COUNTY OF ALAMEDA, OCTAGON RISK MANAGEMENT

This case involves two cumulative trauma injuries to applicant's upper extremities. The Appeals Board rescinded prior findings and remanded the case for new decisions due to the WCJ's failure to apply the controlling case law of *Benson* and *Brodie*. These cases mandate a causation-based apportionment and a percentage-based calculation for permanent disability indemnity, rather than the WCJ's previous approach.

Workers' Compensation Appeals BoardIndustrial injuryUpper extremitiesConsequential headachesLeft knee injuryRight ankle injuryPermanent disabilityAttorney's feesCumulative traumaApportionment
References
3
Case No. ADJ8436467
Regular
Sep 09, 2015

CELEINE MELENDEZ vs. KOHL'S DEPARTMENT STORE, NEW HAMPSHIRE INSURANCE COMPANY

This case concerns an employee seeking workers' compensation for back surgery, specifically an anterior lumbar discectomy and fusion. The employer contested the necessity of the surgery, arguing the administrative law judge erred in approving it. The Appeals Board affirmed the judge's decision, finding the request for authorization was valid as it reflected a change in circumstances. Therefore, the defendant is ordered to provide the authorized surgical treatment.

Workers' Compensation Appeals BoardReconsiderationUtilization ReviewAnterior Lumbar Discectomy and FusionLabor Code section 4610(g)(6)Primary Treating PhysicianIndependent Medical ReviewFindings and OrderLumbar SpineMedical Treatment Authorization
References
0
Case No. SRO 110075; SRO 110076 SRO 117282; SRO 124296 SRO 125019
Regular
Apr 09, 2008

GENARO LEMUS, JR. vs. GHILOTTI BROTHERS CONSTRUCTION COMPANY, ZURICH INSURANCE COMPANY, STATE COMPENSATION INSURANCE FUND

The Appeals Board granted reconsideration because a recent en banc decision in *Benson* significantly changed how permanent disability is apportioned among multiple industrial injuries. This new apportionment approach requires further development of the medical record to determine the causative sources of the applicant's overall 85% permanent disability. Consequently, the Board rescinded the prior decision and returned the case for further proceedings and a new decision by the WCJ.

Workers' Compensation Appeals BoardGenaro Lemus Jr.Ghilotti Brothers Construction CompanyZurich Insurance CompanyState Compensation Insurance Fundindustrial injuryback injurycarpal tunnelpsychepermanent disability
References
4
Case No. ADJ3131839 (LBO 0826068)
Regular
Jul 23, 2013

VINCENT JONES vs. INSPERITY, ADMINISTAFF, PLASTOPAN INDUSTRIES, LUMBERMAN'S INSURANCE

The Appeals Board granted reconsideration to review the WCJ's award of retroactive vocational rehabilitation benefits (VRTD) to applicant Vincent Jones. The Board agreed that the Rehabilitation Unit's determination was valid and enforceable, correcting a clerical error in the liability start date. However, the Board rescinded the VRTD rate and earnings determination, remanding these issues to the trial level for further proceedings consistent with a wage-loss calculation approach as established in *Gamble*.

Petition for ReconsiderationFindings and AwardRehabilitation UnitVocational Rehabilitation BenefitsRetroactive BenefitsDelay RateOrder Approving Compromise and ReleaseThomas FindingAOE/COEInchoate Benefits
References
7
Case No. MISSING
Regular Panel Decision

Guarino v. Mine Safety Appliance Co.

This judicial concurrence discusses the limited applicability of the "danger invites rescue" doctrine in breach of warranty cases, arguing against its general application due to concerns of unjustified liability for manufacturers. The opinion emphasizes the importance of maintaining distinctions between breach of warranty and negligence liability, citing a warning against limitless liability without fault from Caruth v. Mariani. The judges concur in result only, advocating for a cautious approach to expanding liability theories.

Danger invites rescue doctrineBreach of warrantyNegligence liabilityProduct liabilityJudicial interpretationConcurring opinionLiability without faultSocial justice in lawJudicial restraintCourt of Appeals
References
1
Case No. GOL 97477, GOL 97480, GOL 97481
Regular
Apr 18, 2008

MARY PRILEPINE vs. MEDTRONIC PS MEDICAL, INC., ESIS/EMPLOYERS SELF-INSURANCE SERVICE

This case involves an applicant who sustained multiple industrial injuries to her forearms, back, neck, wrists, hands, and elbows over several years. The Workers' Compensation Appeals Board granted reconsideration to apply the recent *Benson* decision, which modified the application of the *Wilkinson* rule for combining permanent disability awards. Consequently, the Board deferred findings on permanent disability and apportionment for further development of the record in light of *Benson*'s causation-based approach.

Petition for ReconsiderationPermanent Disability Rating ScheduleWilkinsonApportionmentCausationBensonTylerMcCluneMcDuffieWCJ
References
5
Case No. ADJ4311260
Regular
Feb 16, 2010

ROBERT LEWIS vs. TOPA INSURANCE CO. INC., STATE COMPENSATION INSURANCE FUND

The Appeals Board granted reconsideration to address whether applicant's sleep apnea is industrially related. The initial WCJ found it was not, based on stipulations and medical reports, but the applicant contested this, relying on Dr. Fu's report. The Board found Dr. Fu's report lacked substantial evidence due to insufficient reasoning and a conclusory approach. Therefore, the case is returned to the trial level for further development of the record regarding the industrial causation of the applicant's sleep apnea.

Workers' Compensation Appeals BoardIndustrial InjuryCervical SpineRight ShoulderPermanent DisabilitySleep ApneaIndustrial CausationMedical TreatmentReconsiderationAgreed Medical Examiner (AME)
References
0
Case No. ADJ7732498
Regular
Apr 20, 2016

ERIC RINGER vs. RESTORATION HARDWARE, LIBERTY MUTUAL FIRE INSURANCE COMPANY

This case concerns a dispute over the necessity of an anterior cruciate ligament (ACL) reconstruction surgery for an industrial knee injury. The Workers' Compensation Appeals Board (WCAB) affirmed the administrative law judge's (ALJ) award of the surgery. The primary issue was the timeliness of the employer's utilization review (UR) denial of the proposed treatment. The WCAB found the UR decision invalid because it was issued outside the statutory timeframe after the request for authorization was received. Therefore, the proposed surgery was deemed authorized.

Utilization ReviewRequest For AuthorizationTimely DenialAllograft vs. AutograftACL ReconstructionLabor Code Section 4610Workers' Compensation Appeals BoardFindings And AwardReconsiderationAdministrative Director Rule 9792.9.1
References
2
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