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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

In re Arbitration between New York State Department of Correctional Services & New York State Correctional Officers

This case involves an appeal from a Supreme Court order vacating an arbitration award. Petitioners, the Department of Correctional Services and Governor's Office of Employee Relations, challenged an arbitrator's decision to grant a correction sergeant, Charles Hannigan, approximately $4,000 in vacation and holiday accruals. The arbitrator had initially issued an award with a 45-day suspension for Hannigan and then retained jurisdiction to ensure "made whole" implementation. Petitioners argued the arbitrator exceeded his power by reopening the arbitration. The Supreme Court agreed and vacated the award, a decision affirmed by the appellate court. The appellate court found that the arbitrator's retention of jurisdiction and subsequent reopening of the award violated explicit limitations in the collective bargaining agreement.

Arbitration awardVacaturArbitrator's jurisdictionCollective bargaining agreementPublic employmentCorrection officerBack payEmployee benefitsWaiverScope of arbitration
References
21
Case No. MISSING
Regular Panel Decision

New York State Correctional Officer & Police Benevolent Ass'n v. New York State Department of Correctional Services

Elsie Pierre, a correction officer, sustained a work-related injury in May 2004, leading to workers’ compensation leave. Respondent Department of Correctional Services initiated termination proceedings, but a medical evaluation by respondent's designated physician on September 15, 2005, found her unfit for duty. Pierre's physician, Sanford Wert, later cleared her for work on June 12, 2006, a finding supported by a Hearing Officer who recommended reinstatement with retroactive pay. Respondent, however, rejected the full retroactive award, granting pay only from October 12, 2007, arguing that Pierre had not properly exhausted administrative remedies for the earlier date and that an independent evaluation was lacking. Petitioners challenged this limited retroactive pay, but the Court confirmed the respondent's determination, dismissing the petition and upholding the October 12, 2007, start date for back pay.

Workers' Compensation LeaveRetroactive Back PayCivil Service LawAdministrative ReviewFitness for DutyMedical Evaluation DisputeCorrection Officer EmploymentCPLR Article 78 ProceedingJudicial DiscretionAppellate Court Decision
References
1
Case No. ADJ6951777
Regular
Nov 23, 2010

GINGER LOGAN-CANNON vs. STATE OF CALIFORNIA, DEPARTMENT OF CORRECTIONS, STATE COMPENSATION INSURANCE FUND/STATE CONTRACTS SERVICES

The Workers' Compensation Appeals Board granted the defendant's petition for reconsideration. The Board rescinded the original September 9, 2010 Findings and Award. A clerical error in a subsequent order setting aside the award, which mistakenly referred to other case numbers, was corrected to include the correct case number. The matter is remanded for further proceedings to address the November 29, 2010 hearing.

Petition for ReconsiderationFindings and AwardClerical ErrorRescindedRemandWorkers' Compensation Appeals BoardWCJAdjusting AgencyLegally UninsuredCompanion Cases
References
3
Case No. ADJ2016167 (SAC 0367576) ADJ1468086 (SAC 0329245)
Regular
Jun 02, 2011

STEVEN SHADDEN (Deceased) KAMESHA SHADDEN (Widow) vs. DEPARTMENT OF CORRECTIONS; STATE COMPENSATION INSURANCE FUND

This case concerns supplemental attorney's fees awarded after the employer's petition for writ of review was denied by the Court of Appeal. The appellate court found no reasonable basis for the employer's petition and remanded the case for supplemental attorney fee awards. The Workers' Compensation Appeals Board (WCAB) reviewed and approved stipulations for attorney fees totaling $3,000.00 for one counsel and $7,537.30 (including costs) for another. The WCAB issued awards in favor of the respective law firms against the Department of Corrections for these amounts.

Workers' Compensation Appeals BoardSupplemental Attorney's FeesLabor Code § 5801Petition for Writ of ReviewRemittiturStipulationReasonable FeesAwardDepartment of Corrections and RehabilitationState Compensation Insurance Fund
References
1
Case No. 2021 NY Slip Op 03504 [195 AD3d 1115]
Regular Panel Decision
Jun 03, 2021

Matter of New York State Corr. Officers & Police Benevolent Assn., Inc. (New York State Dept. of Corr. & Community Supervision)

This appeal concerns an arbitration award involving a correction officer, Pedro Norde, disciplined by the New York State Department of Corrections and Community Supervision for unauthorized phone calls and false statements. Norde's union, NYSCOPBA, grieved the discipline, leading to an arbitration where the arbitrator dismissed some charges as untimely and lacking particularization, based on "due process" interpretations not explicitly in the collective bargaining agreement (CBA). The Supreme Court confirmed this award. However, the Appellate Division found the arbitrator exceeded his authority by imposing requirements beyond the CBA's terms regarding the criminal acts exception to timeliness and the standard for notice particularization. Consequently, the Appellate Division reversed the lower court's order, granted the cross-motion to vacate the arbitration award concerning the dismissed charges, and remitted the matter back to the arbitrator for further proceedings.

Arbitration LawCollective BargainingEmployee DisciplineArbitrator OverreachTimeliness of ChargesNotice RequirementsAppellate ReviewJudicial Review of ArbitrationPublic Employee RightsCorrectional Officers
References
12
Case No. SAC 289384
Regular
Apr 04, 2008

NICK MILIVOJEVICH vs. UNITED AIRLINES

This case involves a clerical error in a prior award of attorney's fees for applicant Nick Milivojevich against United Airlines. The Workers' Compensation Appeals Board corrected the award to reflect the correct appellate attorney's fees of $\$ 6,050.00$ and disallowed costs, maintaining its continuing jurisdiction to rectify such errors. The corrected award is payable to Farrell, Fraulob & Brown, A Professional Corporation.

Workers' Compensation Appeals BoardClerical ErrorOpinion and AwardAttorney's FeesAppellate Attorney's FeesCostsContinuing JurisdictionToccalinoMorganUnited Airlines
References
2
Case No. MISSING
Regular Panel Decision

In re the Arbitration between Kowaleski & New York State Department of Correctional Services

Petitioner Barbara Kowaleski, a correction officer, was disciplined by DOCS for alleged misconduct. She argued that the disciplinary action was brought in retaliation for reporting a fellow officer's misconduct, asserting this as an affirmative defense under Civil Service Law § 75-b. The arbitrator, however, refused to consider this defense, stating his authority was limited to determinations of guilt or innocence and the appropriateness of proposed penalties. The arbitrator found Kowaleski guilty of two charges and upheld her termination. Kowaleski subsequently petitioned to vacate the arbitration award. The Supreme Court and Appellate Division affirmed the arbitrator's decision, concluding that while the arbitrator made an error of law, it did not warrant vacating the award. The Court of Appeals reversed, holding that the arbitrator exceeded his power by failing to consider and determine the mandatory retaliation defense as explicitly required by Civil Service Law § 75-b, emphasizing the critical need for a separate retaliation inquiry to protect whistleblowers. The matter was remitted to the Supreme Court for further proceedings.

Whistleblower ProtectionRetaliation DefenseCivil Service LawArbitration AwardJudicial ReviewArbitrator AuthorityPublic PolicyCollective Bargaining AgreementEmployee DisciplineDue Process
References
4
Case No. ADJ9128958
Regular
Jun 18, 2019

CECILIA DUARTE vs. STATE OF CALIFORNIA, DEPARTMENT OF CORRECTIONS, INSTITUTION FOR MEN

The Workers' Compensation Appeals Board (WCAB) granted reconsideration to correct an award based on a stipulation of facts. The original award incorrectly listed the State Compensation Insurance Fund (SCIF) as a party liable for the award. The WCAB rescinded the previous award and issued a new one, properly identifying the employer, Department of Corrections Institution for Men, as the sole defendant. The new award includes temporary and permanent disability indemnity, medical treatment, and reimbursement for expenses, with specific terms for permanent disability and attorney fees.

Workers' Compensation Appeals BoardPetition for ReconsiderationLegally UninsuredStipulations with Request for AwardAdjusting AgencyRescinded AwardTemporary Disability IndemnityPermanent Disability IndemnityLife PensionMedical Treatment
References
0
Case No. ADJ1284568 (BAK 0142029)
Regular
Nov 09, 2015

SHEILA WINBURN vs. STATE OF CALIFORNIA, CDCR - NORTH KERN STATE PRISON, Legally Uninsured, STATE COMPENSATION INSURANCE FUND/STATE CONTRACT SERVICES

This order corrects a clerical error in a prior Workers' Compensation Appeals Board decision issued August 21, 2015. The original decision failed to include an attorney fee in the total temporary disability award, which was present in the WCJ's initial ruling. The Appeals Board is correcting this omission to ensure clarity and a complete understanding of the award. The corrected decision now includes the attorney fee payable to Leviton, Diaz & Ginocchio, with other aspects of the August 21, 2015 decision affirmed.

Clerical ErrorAttorney FeeTemporary DisabilityPetition for ReconsiderationDecision After ReconsiderationWorkers' Compensation Appeals BoardCDCRNorth Kern State PrisonLegally UninsuredAdjusting Agency
References
1
Case No. ADJ9254144
Regular
May 03, 2019

SYLVIA DURAN vs. CALIFORNIA DEPARTMENT OF CORRECTIONS & REHABILITATION, NORTH KERN STATE PRISON, STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board granted reconsideration to correct clerical errors in the initial Findings of Fact and Award. The Board amended the award to accurately reflect the applicant's stipulated average weekly earnings and temporary total disability indemnity rate. Additionally, a statutory citation regarding violent acts was corrected. The Board otherwise affirmed the original award, which found industrial injury to multiple body parts and awarded 42% permanent disability, but did not classify the injury as a result of a violent act.

Workers' Compensation Appeals BoardPetition for ReconsiderationFindings of Fact and AwardAdministrative Law JudgeAOE/COETemporary Total DisabilityPermanent Disability IndemnityViolent ActLabor Code 3208.3Labor Code 4660.1(c)(2)(A)
References
0
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