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

Case No. MISSING
Regular Panel Decision

Rubies v. Aqua Club, Inc.

Judge Read dissents from the majority's interpretation of 'permanent total disability' concerning acquired brain injuries under Workers’ Compensation Law § 11. Read argues for a narrower definition, requiring the inability to perform usual daily living activities, aligning with legislative intent for the 1996 amendment to section 11. This amendment aimed to strictly curtail third-party actions against employers by narrowly defining 'grave injuries.' The dissent stresses that the list of grave injuries is exhaustive, not illustrative, and should not be broadly interpreted. Therefore, the definition of 'permanent total disability' for an acquired brain injury should essentially require a vegetative state to protect employers as intended by the Legislature.

Workers' CompensationGrave InjuryAcquired Brain InjuryPermanent Total DisabilityLegislative IntentStatutory InterpretationEmployer LiabilityThird-Party ActionsDissenting OpinionJudicial Review
References
5
Case No. ADJ11114962
Regular
Jan 10, 2019

HECTOR HERNANDEZ vs. MARK DATTILLO’S HEATING AND AIR CONDITIONING, CALIFORNIA INSURANCE COMPANY, APPLIED RISK SERVICES

The Workers' Compensation Appeals Board denied the defendant's petition for reconsideration, affirming the judge's finding that the applicant's accepted head injury included a brain injury. The Board found the defendant's objections regarding notice of the brain injury claim and the timeliness of their response to medical treatment requests were unfounded. Furthermore, the Board determined that the defendant waived its right to dispute the industrial causation of the brain injury by previously authorizing treatment with a neurologist who diagnosed such an injury. The defendant's due process claims were also rejected.

Workers' Compensation Appeals BoardTraumatic Brain InjuryExpedited HearingFindings and AwardPetition for ReconsiderationLabor Code section 4610Utilization ReviewPrimary Treating PhysicianAgreed Medical ExaminationWCJ
References
9
Case No. ADJ9084165
Regular
Oct 19, 2015

BOBBY DUCKWORTH vs. LOS ANGELES RAMS, TRAVELERS, SAN DIEGO CHARGERS, INSURANCE COMPANY OF THE WEST, ZENITH INSURANCE COMPANY

The Workers' Compensation Appeals Board denied reconsideration, upholding the finding that the applicant's current claim for cumulative brain injury is not barred by a 1989 compromise and release agreement. The 1989 agreement specifically released claims for orthopedic injuries, and there was no evidence that the applicant knew of or intended to release a brain injury claim at that time. The Board found that the brain injury claim, diagnosed later, involved a distinct injury not contemplated by the earlier settlement. Therefore, the doctrines of res judicata and collateral estoppel did not apply to bar the current claim.

res judicatacollateral estoppelcompromise and releasecumulative injurybrain injurynervous systemorthopedic injurylatent conditiondate of injuryworkers' compensation appeals board
References
13
Case No. MISSING
Regular Panel Decision

Bush v. Mechanicville Warehouse Corp.

This case involves an appeal from the denial of a third-party defendant's (Yankee One Dollar Stores, Inc.) motions for summary judgment against a defendant (Mechanicville Warehouse Corp.). The plaintiff, Bush, was injured at work and sued Mechanicville, who then brought a third-party action against Yankee for indemnification. Yankee argued that plaintiff did not sustain a 'grave injury' under Workers’ Compensation Law § 11 and that there was no written contractual indemnification agreement. The appellate court affirmed the denial of summary judgment regarding the 'grave injury' claim, finding sufficient evidence of permanent total disability due to a traumatic brain injury. However, the court reversed the denial of summary judgment for contractual indemnification, ruling that Workers’ Compensation Law § 11 requires an *express written contract* of indemnification from the employer, which was not present between Yankee and Mechanicville.

Summary JudgmentThird-Party ActionWorkers' Compensation Law § 11Grave InjuryContractual IndemnificationBrain InjuryPermanent Total DisabilityHoldover TenantExpress AgreementAppellate Review
References
18
Case No. MISSING
Regular Panel Decision

Rubeis v. Aqua Club, Inc.

Aldo Rubeis was injured after falling from a ladder while installing a steel cupola, sustaining a brain injury. He sued Aqua Club, Inc., who then impleaded Rubeis's employer, Venezia Iron Works, Inc., alleging a "grave injury" under Workers' Compensation Law § 11 for common-law indemnification and contribution. The Supreme Court denied Venezia Iron Works' motion to dismiss, and a jury found Rubeis sustained a grave injury. Venezia Iron Works appealed. The Appellate Division reviewed the definition of "grave injury" under Workers' Compensation Law § 11, specifically "permanent total disability" in the context of brain injury cases. The Court concluded that Rubeis's injuries, despite their severity, did not meet the "narrowly defined" standard for grave injury based on prior precedents, which focus on day-to-day functions rather than just employability. Therefore, the Appellate Division reversed the judgment, granted Venezia Iron Works' motion, and dismissed the third-party complaint.

Grave InjuryWorkers' Compensation Law § 11Permanent Total Disability DefinitionBrain Injury SeverityCommon Law IndemnificationContribution ClaimThird-Party Action DismissalAppellate Review StandardsStatutory InterpretationEmployer Liability Exemption
References
9
Case No. MISSING
Regular Panel Decision

Barbieri v. Mount Sinai Hospital

Plaintiff, a carpenter employed by Universal Drywall Services, suffered severe injuries after falling 30 feet at a Mount Sinai Hospital work site. Plaintiff sued Mount Sinai under Labor Law §§ 200, 240 (1), and 241 (6), alleging various disabling injuries including fractures, nerve damage, and brain injuries. Mount Sinai, in turn, sought contribution and indemnification from Universal. Universal argued that Mount Sinai's claim was barred because the plaintiff had not sustained a "grave injury" as defined by Workers' Compensation Law § 11. The IAS Court granted summary judgment to plaintiff against Mount Sinai, and to Universal, dismissing Mount Sinai's third-party complaint. This court affirmed the lower court's decision, concluding that plaintiff's alleged injuries did not meet the "grave injury" threshold under Workers' Compensation Law § 11, specifically not constituting "permanent and severe facial disfigurement" or "permanent total disability" from brain injury, thereby barring Mount Sinai's third-party action against Universal.

Grave InjuryWorkers' Compensation Law § 11Labor Law § 240 (1)Contribution and IndemnificationThird-Party ActionSummary JudgmentEmployer LiabilityWorkplace AccidentFacial DisfigurementBrain Injury
References
14
Case No. 2020 NY Slip Op 03985 [185 AD3d 485]
Regular Panel Decision
Jul 16, 2020

Goundan v. Pav-Lak Contr. Inc.

The Appellate Division, First Department, affirmed an order denying intervenor Norguard Insurance Company's motion for summary judgment. Norguard, the workers' compensation carrier for third-party defendant D&D Electrical Construction Company Inc., sought to dismiss common-law indemnification and contribution claims, arguing plaintiff Ashton Goundan's brain injuries did not constitute "grave injuries" under the Workers' Compensation Law. The court found that evidence from the Social Security Administration, determining plaintiff's permanent total disability due to these brain injuries, raised a triable issue of fact as to whether the injuries met the "grave injury" threshold, thus warranting the denial of summary judgment.

Workers' CompensationSummary JudgmentGrave InjuryBrain InjuriesPermanent Total DisabilityCommon-Law IndemnificationContributionConstruction Site AccidentAppellate ReviewIssue of Fact
References
4
Case No. MISSING
Regular Panel Decision
Dec 03, 2004

Claim of Scally v. Ravena Coeymans Selkirk Central School District

In this case, a claimant appealed a Workers’ Compensation Board decision regarding apportionment of her workers' compensation award. The claimant, who suffered a work-related left knee injury in 2002, had a pre-existing non-work-related injury to the same knee from 1986. While a WCLJ initially denied apportionment, the Board reversed, directing a 50/50 apportionment based on the premise that the prior injury would have resulted in a schedule loss of use award had it been work-related. The appellate court upheld the Board's determination, deferring to its interpretation that a non-work-related injury leading to a schedule loss of use constitutes a "disability in a compensation sense" for apportionment purposes. This decision was supported by medical expert testimony indicating a schedule loss of use from the prior surgery.

Workers' CompensationApportionmentKnee InjuryNon-work-related InjurySchedule Loss of UsePreexisting ConditionMedical Expert TestimonyBoard InterpretationJudicial ReviewAppellate Decision
References
13
Case No. 2019 NY Slip Op 00200
Regular Panel Decision
Jan 10, 2019

Alulema v. ZEV Elec. Corp.

This case addresses an appeal concerning an employer's liability for an on-the-job injury, specifically regarding the definition of a "grave injury" under Workers' Compensation Law § 11. The Supreme Court, Bronx County, had initially denied the third-party defendants' motion for summary judgment. The Appellate Division, First Department, reviewed whether the plaintiff sustained a grave injury, which requires an acquired brain injury resulting in permanent total disability and unemployability in any capacity. The court found insufficient competent medical testimony to prove that the plaintiff's brain injury rendered him unemployable, noting his pursuit of jobs, GED attainment, and ability to drive. Consequently, the Appellate Division reversed the lower court's order and granted summary judgment in favor of the third-party defendants.

Workers' Compensation LawGrave InjurySummary JudgmentAppellate ReviewThird-Party LiabilityBrain InjuryPermanent Total DisabilityEmployabilityMedical TestimonyCognitive Symptoms
References
4
Case No. MISSING
Regular Panel Decision

Sergeant v. Murphy Family Trust

The dissenting opinion concurs with the majority on all points except whether the third-party plaintiffs, Murphy Family Trust and Murphy and Nolan, Inc., presented sufficient evidence to defeat a summary judgment motion filed by D.R. Casey Construction Corp. The dissent agrees that D.R. Casey proved the plaintiff did not sustain a 'grave injury' under Workers' Compensation Law § 11. However, the dissenting judge argues that Murphy failed to provide competent medical evidence to establish an issue of fact. The dissent emphasizes that for a brain injury to constitute a 'grave injury' leading to total disability, the brain injury itself must cause the total disability, not a combination of injuries. Consequently, the dissenting judge would affirm the dismissal of the third-party complaint.

Grave InjuryWorkers' Compensation Law § 11Summary Judgment MotionThird-Party LiabilityBrain Injury DisabilityMedical Evidence SufficiencyPermanent Total DisabilityDissenting OpinionAppellate ReviewIssue of Fact
References
3
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