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Case Law Database

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

Case No. MISSING
Regular Panel Decision
Nov 14, 2006

Velasco v. Green-Wood Cemetery

The Supreme Court, Bronx County, affirmed an order granting defendants' motion for summary judgment, dismissing the plaintiff's claim for future lost earnings. The plaintiff had previously been granted summary judgment on liability under Labor Law § 240 (1). However, the plaintiff failed to provide admissible evidence to counter the defendants' showing that he returned to work four months post-accident. While the Workers' Compensation Board found a 'permanent partial disability' and awarded benefits, these benefits only covered the four-month period immediately following the accident, with no finding of inability to return to work. The anticipated expert testimony was deemed not to be 'evidentiary proof in admissible form'.

Summary JudgmentLost EarningsFuture Lost EarningsPermanent Partial DisabilityLabor LawWorkers' Compensation BoardAdmissibility of EvidenceVocational RehabilitationOrthopedic SurgeonAppellate Decision
References
2
Case No. SRO 0120101, SRO 0120100
Regular
Mar 28, 2008

CYNTHIA L. RICH vs. STATE OF CALIFORNIA, SONOMA DEVELOPMENTAL CENTER, STATE COMPENSATION INSURANCE FUND

This case involves a dispute over how to calculate temporary disability indemnity for an injured worker. The employer argues that indemnity should be based on the applicant's wages at the time of injury, while the applicant seeks a higher rate based on her earning capacity and anticipated future wage increases. The Appeals Board granted reconsideration, finding that a strict application of the wage at the time of injury may not be reasonable given the applicant's employment history and potential for future raises. The case is remanded for further proceedings to determine earning capacity based on reasonably anticipated cost of living adjustments.

Workers' Compensation Appeals BoardReconsiderationFindings Award and OrdersTemporary Disability IndemnityEarning CapacityAverage Weekly EarningsDate of InjuryLabor Code Section 4453(d)Permanent DisabilityMedical Treatment
References
5
Case No. MISSING
Regular Panel Decision
Apr 12, 1996

Van Guilder v. Sands Hecht Construction Corp.

This case involves an appeal from a judgment in an action under Labor Law § 240 (1). The judgment, entered April 12, 1996, awarded damages for past pain and suffering and past lost earnings, but zero for future damages. The court unanimously affirmed the judgment. The central issue was whether the trial court correctly instructed the jury on mitigation of damages, specifically regarding the plaintiff's refusal to undergo a myelogram, a test repeatedly recommended by his treating orthopedist for diagnosis and potential surgery. The appellate court found ample evidence to justify the mitigation charge, citing the physician's recommendation and the plaintiff's failure to attend physical therapy or seek employment. The court also affirmed the damage award, finding it reasonable given conflicting medical testimony about a herniated disc and inconsistencies in the plaintiff's testimony about his post-accident lifestyle and efforts to find work.

Labor Law § 240 (1)DamagesMitigation of DamagesMyelogramMedical DiagnosisRefusal of TreatmentPain and SufferingLost EarningsHerniated DiscWorkers' Compensation Board
References
1
Case No. 18-CV-0361
Regular Panel Decision
Mar 06, 2018

Commodity Futures Trading Comm'n v. McDonnell

The Commodity Futures Trading Commission (CFTC) sued Patrick McDonnell and his company, CabbageTech, Corp. d/b/a Coin Drop Markets (CDM), alleging a deceptive and fraudulent virtual currency scheme. The defendants were accused of offering fraudulent trading and investment services related to virtual currency, misappropriating investor funds, and misrepresenting trading advice and future profits. The primary legal questions involved the CFTC's standing to sue and whether virtual currencies are considered commodities under the Commodity Exchange Act (CEA). The court affirmed both questions, finding that virtual currencies function as commodities and that the CFTC has jurisdiction over fraud in underlying spot markets, not just derivatives. Consequently, the court granted a preliminary injunction in favor of the CFTC and denied the defendants' motion to dismiss for lack of jurisdiction, concluding there was a reasonable likelihood of continued CEA violations without the injunction.

Virtual CurrencyBitcoinLitecoinCommodity Exchange ActCFTC JurisdictionFraudMisappropriationPreliminary InjunctionSpot Market RegulationFinancial Technology
References
60
Case No. ADJ6875600
Regular
Nov 18, 2014

Sharon Walter vs. International Capital Group, State Compensation Insurance Fund

The Workers' Compensation Appeals Board granted reconsideration to further develop the record regarding applicant Sharon Walter's diminished future earning capacity. The Board found the vocational expert evidence presented was inadequate to support a finding of total permanent disability or to rebut the future earning capacity factor as required by *Ogilvie*. The case is remanded to the trial level to allow for the selection or appointment of a vocational expert to assess applicant's diminished future earning capacity, and the trial judge may then address claims for increased permanent disability.

Workers Compensation Appeals BoardPermanent DisabilityFuture Earning CapacityVocational ExpertReconsiderationLabor Code Section 4662Labor Code Section 4658(d)(2)OgilvieAgreed Medical ExaminerApportionment
References
2
Case No. ADJ3600842 (SDO 0363689)
Regular
Jan 27, 2010

THEMAS POULIN vs. COUNTY OF SAN DIEGO

This case involves an applicant who sustained an industrial injury to his heart and hypertension. The initial award granted 65% permanent disability, which the defendant challenged, arguing the assigned Whole Person Impairment was disproportionately high and that Diminished Future Earning Capacity should be zero. The Appeals Board rescinded the original award and returned the matter for a new decision. This is because the trial judge had not yet considered the implications of the recent en banc decisions in *Almaraz II* and *Ogilvie II* regarding the rebuttability of scheduled permanent disability ratings and the evaluation of Diminished Future Earning Capacity. The Board noted concerns about the assigned impairment rating in light of the applicant's return to work and potential future earning capacity.

Workers' Compensation Appeals BoardDeputy SheriffIndustrial InjuryHeart ConditionHypertensionPermanent DisabilityWhole Person ImpairmentAgreed Medical EvaluatorReconsiderationAlmaraz
References
5
Case No. MISSING
Regular Panel Decision

Kirschhoffer v. Van Dyke

Plaintiff Lynne A. Kirschhoffer was injured in a car collision, and defendants were found solely responsible. A jury initially awarded Kirschhoffer $8,595,000 and her husband $1.8 million for derivative claims. The Supreme Court conditionally reduced these awards for future pain and suffering, impairment of earning ability, and the derivative claim, to which plaintiffs stipulated. Defendants appealed, challenging the preclusion of their medical expert's testimony regarding Kirschhoffer's pre-existing spondylolisthesis and the refusal to instruct the jury on pre-existing conditions, both of which the appellate court affirmed. The defendants' contention regarding the speculative nature of lost future earning capacity was also rejected. However, the appellate court further reduced the awards for future pain and suffering, impairment of earning ability, and derivative damages, finding the prior reductions still materially deviated from reasonable compensation, and ordered a new trial on these specific damages unless plaintiffs stipulate to the further reduced amounts.

Personal InjuryCar AccidentDamages ReductionJury AwardMedical Expert TestimonyPre-existing ConditionLost Earning CapacityAppellate ReviewPain and SufferingSpondylolisthesis
References
23
Case No. MISSING
Regular Panel Decision

Austin v. Meade

This negligence action arose from an automobile accident where the defendant conceded liability, and a jury awarded the plaintiff damages for lost earnings, future medical expenses, future loss of earnings, and pain and suffering. A dispute arose regarding the reduction of the verdict due to the prohibition against recovering basic economic loss under Insurance Law § 5104 (a). The Supreme Court initially reduced the verdict by the amount the plaintiff received from other sources for lost wages ($38,977.94). On appeal, the court clarified that the proper methodology involves calculating the plaintiff's basic economic loss (including medical expenses and a portion of lost earnings) and reducing the verdict accordingly. The appellate court modified the judgment, ruling that the verdict should be reduced by $42,967.10, representing basic economic loss for lost earnings, and affirmed the judgment as so modified, resulting in a final judgment for the plaintiff of $265,905.70.

NegligenceAutomobile AccidentDamagesLost EarningsMedical ExpensesBasic Economic LossInsurance LawVerdict ReductionCollateral Source RuleAppellate Review
References
6
Case No. ADJ3303329 (MON 0363353) ADJ6697361
Regular
Oct 21, 2010

RAMIRO O. VELASQUEZ vs. MOONLIGHT MOLDS, CYPRESS INSURANCE COMPANY, BROOKSHIRE HATHAWAY HOME STATE COMPANIES

The Workers' Compensation Appeals Board rescinded a prior award, returning the case for further proceedings. The original award found the applicant suffered an industrial injury resulting in 64% permanent disability and the need for further medical treatment, including a rebuttal of the future earning capacity component. The defendant challenged the permanent disability rating, arguing the judge improperly applied the Ogilvie standard for assessing diminished future earning capacity. The Board found the applicant's testimony alone insufficient to rebut the scheduled factor, necessitating development of the record on earning capacity.

Workers' Compensation Appeals BoardMoonlight MoldsCypress Insurance CompanyRamiro O. Velasquezsandblasterlaborerindustrial injurylow backfuture earning capacitypermanent disability
References
5
Case No. 2021 NY Slip Op 04726
Regular Panel Decision
Aug 18, 2021

Pimenta v. 1504 Cia, LLC

The plaintiff, a construction worker, was injured on the job when a ladder fell, leading to severe spinal and knee injuries. He successfully obtained summary judgment on a Labor Law violation and a jury subsequently awarded substantial damages for past and future pain and suffering and lost earnings. However, the Supreme Court reduced the pain and suffering awards, prompting appeals from both the plaintiff (regarding the reduction) and the defendants (seeking further reductions and challenging the lost earnings). The Appellate Division affirmed the Supreme Court's order, concluding that the reduced awards were reasonable and the award for future lost earnings was supported by the evidence.

Personal InjuryConstruction AccidentLadder FallDamagesPain and SufferingLost EarningsExcessive VerdictJury VerdictAppellate ReviewMedical Treatment
References
7
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