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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

Opn. No.

This legal opinion addresses whether cost-of-living adjustments paid by the New York City Transit Authority (TA) to its employees, represented by the Transport Workers Union of America (TWU), are subject to suspension under the wage freeze provisions of the Financial Emergency Act for the City of New York. The Act, enacted in 1975 to address the city's fiscal crisis, includes the TA as a 'covered organization' whose salary and wage increases are suspended. The opinion concludes that cost-of-living adjustments constitute 'salary or wages' based on common interpretation and legal precedents. Therefore, the opinion holds that such payments by the TA would violate the Act's wage freeze mandate, aligning with the legislative intent to prevent the city's financial collapse.

Wage freezeCost-of-living adjustmentsFinancial Emergency ActNew York City fiscal crisisPublic employeesCollective bargainingStatutory interpretationEmergency powersGovernmental entitiesEconomic stabilization
References
11
Case No. MISSING
Regular Panel Decision

Greece Support Service Employees Ass'n v. Public Employment Relations Board

This case concerns an appeal regarding the proper application of Civil Service Law § 209-a (1) (e) to salary provisions in an expired collective bargaining agreement between an unnamed petitioner and the Greece Central School District. The agreement, from July 1992 to June 1995, included cost-of-living adjustments for salary schedules during its term. After the agreement expired, the District continued existing salary schedules but ceased further cost-of-living adjustments for 1995-1996, prompting the petitioner to file an improper practice charge. The Public Employment Relations Board (PERB) reversed an Administrative Law Judge's decision, concluding that the agreement did not mandate continued cost-of-living adjustments post-expiration. The Supreme Court dismissed the petitioner's subsequent CPLR article 78 petition seeking annulment of PERB's determination. The Appellate Division affirmed the Supreme Court's judgment, deferring to PERB's expertise and finding its interpretation that the adjustments were limited to the agreement's term to be reasonable and legally permissible.

Collective Bargaining AgreementSalary AdjustmentCost-of-Living AdjustmentPublic EmployerImproper Practice ChargeCivil Service LawPublic Employment Relations BoardJudicial ReviewCPLR Article 78Statutory Interpretation
References
6
Case No. ADJ7315205
Regular
Jul 08, 2010

JOSE H. HERNANDEZ vs. COVE BUILDERS, INC., STATE COMPENSATION INSURANCE FUND

This case involves a dispute over the calculation of permanent disability (PD) payments for an applicant with 100% PD. The defendant appealed an order that adjusted PD payments based on a calculation by T. Blair McGowan, arguing that McGowan's calculations incorrectly applied a 15% increase under Labor Code section 4658(d)(2) and improperly included cost of living adjustments (COLA) prior to the date of injury. The Board granted reconsideration, finding the 15% increase inapplicable to 100% PD cases. However, due to the unsettled legal status of COLA calculations following *Duncan v. WCAB*, the Board rescinded the prior order and remanded the case for further proceedings to determine the correct PD rate.

Workers' Compensation Appeals BoardReconsiderationClerical ErrorPermanent Disability RateLabor Code Section 4658(d)(2)Labor Code Section 4659(c)Cost of Living AdjustmentDate of Injury100% Permanent DisabilityPermanent Partial Disability
References
1
Case No. ADJ7035398
Regular
Mar 10, 2010

ANDREW MERLOS vs. COCA COLA ENTERPRISES, SEDGWICK CLAIMS MANAGEMENT SERVICES, INC.

Defendant Coca Cola Enterprises petitioned for removal of a WCJ's order requiring an adjuster to appear in person at trial with settlement authority. Defendant argued the adjuster was in Ontario, travel was costly, settlement authority was present at the MSC, and the order denied due process. The Appeals Board granted removal, finding the order would not facilitate settlement and the expense was unjustified given the parties' positions. The Board amended the order to allow the adjuster to appear by telephone with settlement authority.

Workers' Compensation Appeals BoardPetition for RemovalOrder to AppearSettlement AuthorityMandatory Settlement ConferenceDue ProcessQualified Medical EvaluationPermanent DisabilityTrial AppearanceTelephone Appearance
References
0
Case No. ADJ4292283 (SRO 0134365)
Regular
Dec 24, 2012

SYLVIA MILES vs. WAL-MART, INC., Permissibly Self-Insured

The Appeals Board granted reconsideration to re-evaluate an interim attorney's fee awarded in a permanent total disability case. Initially, the WCJ awarded $49,286.16, but the applicant's attorney argued it was unreasonably low and should account for Cost of Living Adjustments (COLAs). The Appeals Board rescinded the WCJ's decision, finding the attorney entitled to a 15% fee on the commuted present value of the lifetime award, including COLAs. This revised fee, calculated with a 3% COLA effective January 1, 2008, totals $94,985.91, commuted using the "uniformly increasing reduction method."

Workers' Compensation Appeals BoardPermanent Total DisabilityAttorney FeeReconsiderationCost of Living Adjustment (COLA)Labor Code Section 4659(c)Commuted ValuePresent Value CalculationsUniformly Increasing Reduction MethodLodestar Calculation
References
10
Case No. ADJ1371452 (FRE 0216183)
Regular
Jan 05, 2012

PATRICK O'BRIEN vs. COUNTY OF FRESNO/SHERIFF'S DEPARTMENT, YORK INSURANCE SERVICES

This case returns to the WCAB following a court remittitur, directing reconsideration based on the *Baker* decision. The *Baker* ruling clarified that Cost of Living Adjustments (COLAs) under Labor Code section 4659(c) are applied prospectively from the January 1st following entitlement. For this applicant's total permanent disability, permanent and stationary status and benefit commencement were April 26, 2008, entitling them to the COLA from January 1, 2009. Consequently, the WCAB granted reconsideration, affirmed the original award except for substituted findings regarding the COLA start date, and deferred the attorney's fees issue for trial level determination.

RemittiturBaker v. Workers' Comp. Appeals Bd.Labor Code section 4659(c)COLAPermanent and Stationary DateTotal Permanent DisabilityLife PensionState Average Weekly WageAttorney's FeesJurisdiction Reserved
References
1
Case No. 2023 NY Slip Op 04763
Regular Panel Decision
Sep 27, 2023

Lin v. Banko

This case involves an appeal in a divorce action concerning maintenance and equitable distribution. The defendant, William Banko, appealed a judgment of divorce from the Supreme Court, Westchester County, which awarded the plaintiff, Yvette Lin, maintenance and a distributive award. The appeal focused on the interpretation of a prenuptial agreement regarding the termination date of the marriage for distributive award calculations and the application of cost of living adjustments to maintenance. The Appellate Division affirmed the Supreme Court's decision, finding that the marriage terminated upon the commencement of the action and that annual cost of living adjustments were intended for the maintenance obligation, replacing a defunct index with a functionally identical one.

DivorceMaintenanceEquitable DistributionPrenuptial AgreementCost of Living AdjustmentAppellate ReviewNonjury TrialMarital PropertyContract InterpretationCPI Index
References
7
Case No. ADJ4655359 (SRO 0135846)
Regular
Apr 08, 2011

FRANCISCO HERNANDEZ vs. SONOMA ROOFING SERVICES, INC., STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board granted reconsideration and affirmed a prior award of 100% permanent total disability for applicant's industrial injury. While the defendant contested the 100% disability finding and the award of cost of living adjustments (COLA), the Board found sufficient medical evidence supported the permanent disability. However, the commencement date for the COLA increases, specifically its retroactivity, was deferred pending a California Supreme Court decision in *Duncan*.

Workers' Compensation Appeals BoardPermanent Total DisabilityDiminished Future Earning CapacityLife PensionCost of Living AdjustmentsCOLALabor Code Section 4659Duncan v. Workers' Comp. Appeals Bd.Permanent Disability Rating SpecialistQualified Medical Examiner
References
1
Case No. ADJ4677964
Regular
Apr 17, 2013

EUGENE GILMORE vs. AUTOLAND RESALE CENTER, STATE COMPENSATION INSURANCE FUND

This case involved a dispute over an attorney's fee in a workers' compensation claim where the applicant was awarded permanent total disability. The Appeals Board rescinded the original award, finding the WCJ's fee calculation was too low and did not properly account for cost of living adjustments (COLAs). The Board determined a 12% attorney's fee was reasonable, including COLAs calculated prospectively at a 3% average increase. The matter was returned to the trial level for recalculation of the attorney's fee based on these directives.

Workers' Compensation Appeals BoardFindings and AwardPermanent Total DisabilityAttorney's FeeReconsiderationCost of Living Adjustment (COLA)State Average Weekly Wage (SAWW)Permanent Disability Rating Schedule (PDRS)Medical TreatmentUniform Reduction Method
References
6
Case No. ADJ147194 (LBO 0326325)
Regular
Sep 07, 2010

MIRTHA SHIMIZU vs. UNITED AIRLINES, GALLAGHER BASSETT

The Appeals Board granted reconsideration to address the defendant's contentions regarding Cost of Living Adjustments (COLAs) and the calculation of a life pension and attorney's fees. The Board affirmed the finding of 92% permanent disability but rescinded the previous award regarding COLAs, life pension, and attorney's fees. The matter was returned to the trial level for the Workers' Compensation Judge to calculate the specific amounts for the life pension and attorney's fees. Pending this finalization, the defendant was ordered to continue paying permanent disability indemnity.

Workers' Compensation Appeals BoardReconsiderationPermanent DisabilityLife PensionAttorney's FeesCOLALabor Code Section 4659Date of InjuryWCJDisability Evaluation Unit
References
2
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