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

Case No. ADJ3685729 (SJO 0231212)
Regular
Jun 15, 2009

Eva Diaz vs. Hung Quoc Nguyen individually, and dba SAFETRANS TRANSPORTATION, aka SAFETRANS and UNINSURED EMPLOYERS' FUND

The Workers' Compensation Appeals Board denied the defendant employer's petition for reconsideration of an award finding industrial injury to the applicant's shoulders, back, neck, and psyche. The Board granted the Uninsured Employers Benefits Trust Fund's petition to correct a clerical error in identifying the defendant employer and affirmed the original award with the corrected employer name. The Board also clarified that a prior decision on similar facts was res judicata regarding the injury specifics.

Workers' Compensation Appeals BoardUninsured Employers FundPetition for ReconsiderationFindings and AwardIndustrial InjuryBilateral ShouldersPsychePermanent DisabilityApportionmentLabor Code Section 4663
References
1
Case No. ADJ3070416 (LAO 0707238) ADJ3611048 (LAO 0707239)
Regular
Mar 09, 2009

ALBERTO MACIAS vs. GUSTAFSON MANUFACTURING CORP., REVCON MOTOR COACH MFG., UNINSURED EMPLOYERS BENEFITS TRUST FUND, PACIFIC EMPLOYER INSURANCE CO. (ESIS)

The Workers' Compensation Appeals Board granted removal and rescinded a WCJ's order that declared an arbitrator's finding regarding employment dates unenforceable. The Board found a clear clerical error in the arbitrator's finding, which stated employment was from "August, 1985 through May 8, 1985," an impossibility. The Board held that a WCJ has authority to correct such a clerical error nunc pro tunc. The case was returned to the WCJ to correct this error and address the defendant's appeal from the Vocational Rehabilitation Unit's decision.

Workers' Compensation Appeals BoardGustafson Manufacturing Corp.Revcon Motor Coach Mfg.Uninsured Employers Benefits Trust FundPacific Employer Insurance Co. (ESIS)Alberto MaciasArbitrator's DecisionCumulative TraumaVocational Rehabilitation BenefitsCompromise and Release
References
4
Case No. MISSING
Regular Panel Decision

State v. New York State Public Employment Relations Board

The Communications Workers of America/Graduate Employees Union (CWA) petitioned the Public Employment Relations Board (PERB) to be certified as the bargaining representative for graduate and teaching assistants at State University of New York (SUNY) campuses. Initially, PERB's Director dismissed the petition, concluding that these assistants were not 'public employees' under the Taylor Law, applying a balancing test. PERB subsequently rejected this balancing test, establishing a new standard focused on the existence of a regular and substantial employment relationship not explicitly excluded by the Legislature. Under this new standard, PERB reversed the Director's decision, determining that graduate and teaching assistants are covered employees and constitute an appropriate bargaining unit. SUNY then initiated a CPLR article 78 proceeding to annul PERB's determination, arguing legal error in PERB's adopted test and that collective bargaining for academic issues violated public policy. The court upheld PERB's interpretation as reasonable and legally permissible, affirming PERB's determination and dismissing SUNY's petition.

Collective BargainingPublic EmployeesTaylor LawGraduate AssistantsTeaching AssistantsPublic Employment Relations BoardPERBCivil Service LawEmployment RelationshipPublic Policy
References
14
Case No. MISSING
Regular Panel Decision

New York State Public Employment Relations Board v. Board of Education

The concurring opinion, authored by Judge Fuchsberg, affirms the ultimate disposition of the case, upholding the Public Employment Relations Board's (PERB) order. The opinion delves into the critical distinction between an administrative agency exceeding its jurisdiction and merely committing an error of law. It argues that an order issued without statutory power or in excess thereof is inherently void and subject to collateral attack, even if statutory time limits for direct review have passed. Judge Fuchsberg supports this jurisdictional argument by referencing several prior cases, including *Matter of Foy v Schechter* and *Matter of Guardian Life Ins. Co. v Bohlinger*. Ultimately, the opinion concludes that the PERB's remedial orders were fully authorized due to a specific statutory violation, despite the complex jurisdictional challenges raised.

Public Employment Relations BoardAdministrative LawJurisdictionCollateral AttackStatutory InterpretationError of LawBack PayCivil Service LawArticle 78PERB
References
14
Case No. MISSING
Regular Panel Decision

In re the Arbitration between Newspaper Guild of Buffalo, Local No. 26 & Tonawanda Publishing Corp.

This case involves an appeal by a union against an employer after the denial of a motion to compel arbitration. The dispute arose when the employer ceased paying a Christmas bonus, a customary practice, claiming it was not explicitly covered by the collective bargaining agreement. The union's attempts to initiate grievance procedures were rebuffed by the employer, who argued no dispute existed. The court ruled that denying the motion was an error, emphasizing that courts should not delve into the merits of a grievance and that arbitration cannot be sidestepped due to a party's refusal to adhere to contractual pre-arbitration obligations. The order was reversed, and the motion to compel arbitration was granted.

ArbitrationCollective BargainingEmployer-Employee RelationshipBonus DisputesGrievance ProceduresContract InterpretationAppellate ReviewLabor LawMotion to Compel
References
6
Case No. ADJ1543435
Regular
Feb 04, 2013

Sergio Cordero vs. Michael Bernier dba Pacific Services, Stellrecht Company, State Compensation Insurance Fund, Uninsured Employers Benefit Trust Fund

The Workers' Compensation Appeals Board denied reconsideration, upholding the finding that the applicant was injured in the course and scope of employment with an unlicensed contractor, Michael Bernier. The Board gave great weight to the Workers' Compensation Judge's credibility determination regarding the employer's testimony. The applicant's injury occurred while he was directed by Bernier to remove solar panels from a property owned by Stellrecht Company. The Board clarified the distinction between "course of employment" and "scope of employment" in workers' compensation law to affirm the decision.

Workers' Compensation Appeals BoardPetition for ReconsiderationWCJ credibilitycourse and scope of employmentunlicensed contractoruninsured contractorgeneral-special relationshipLabor Code §2750.5B&P §7125.2Blew v. Horner
References
5
Case No. MISSING
Regular Panel Decision

Lippman v. Public Employment Relations Board

This proceeding involved the Unified Court System (UCS) challenging a determination by the Public Employment Relations Board (PERB). PERB had found that UCS violated the Taylor Law by unilaterally issuing an administrative order in December 1997 that amended regulations (22 NYCRR part 108) related to court reporters' fees for selling transcripts to litigants. The court reviewed PERB's findings that the new page-rate guidelines and a mandatory "Minute Agreement Form" constituted an improper practice by altering terms of employment. The court concluded that there was no substantial evidence to support PERB's finding that the page-rate guidelines actually limited reporters' compensation. Furthermore, while the Agreement Form did alter some aspects of employment, its impact was minimal and outweighed by UCS's broader mission to ensure understandable, uniform, timely, and affordable access to justice. Therefore, the court annulled PERB's determination and granted the petition.

Public Employment RelationsTaylor LawCourt ReportersTranscript FeesAdministrative OrderCollective BargainingTerms of EmploymentJudicial AdministrationAccess to JusticePublic Policy
References
24
Case No. MISSING
Regular Panel Decision

Claim of Lashlee v. Pepsi-Cola Newburgh Bottling

The Special Disability Fund appealed a decision by the Workers’ Compensation Board concerning a claimant's average weekly wage calculation. The claimant, injured while employed by Pepsi-Cola, also had concurrent employment with Mid-Hudson Limousine Service, Inc. and Robert H. Auchmoody Funeral Homes, Inc. A Workers’ Compensation Law Judge (WCLJ) included Auchmoody as a concurrent employer, increasing the claimant's average weekly wage. The Fund argued that Auchmoody should not be considered a "covered" employer because there was no proof of workers' compensation insurance. The Workers’ Compensation Board affirmed the WCLJ’s decision. The appellate court affirmed the Board's decision, clarifying that "covered" employment under Workers’ Compensation Law § 14 (6) refers to an employer subject to the Workers’ Compensation Law, irrespective of whether they actually carried an insurance policy, and that the law must be liberally construed in favor of employees.

Workers’ CompensationConcurrent EmploymentAverage Weekly WageCovered EmploymentIndependent ContractorSpecial Disability FundInsurance PolicyLiberal ConstructionAppellate DivisionWCLJ Decision
References
4
Case No. MISSING
Regular Panel Decision

Tri-State Employment Services, Inc. v. Mountbatten Surety Co.

The United States Court of Appeals for the Second Circuit certified a question to the New York Court of Appeals regarding whether a professional employer organization (PEO) may be a proper claimant under a labor and materials surety bond. Plaintiff Tri-State Employment Services, Inc., a PEO, provided employee leasing services to Team Star Contractors, Inc. for a construction project, covering payroll, taxes, and insurance. When Team Star failed to pay, Tri-State filed a claim with the surety, Mountbatten Surety Company, Inc., which was dismissed by the District Court. The New York Court of Appeals determined that a PEO's primary role as an administrative services provider and payroll financier creates a presumption that it does not provide labor for the purpose of a payment bond claim. The Court found that Tri-State failed to overcome this presumption by demonstrating sufficient direction and control over the workers. Consequently, the Court answered the certified question in the negative, ruling that Tri-State Employment Services, Inc. is not a proper claimant under the surety bond in the circumstances presented.

Professional Employer OrganizationSurety BondLabor and Materials BondClaimant StatusEmployee LeasingPayroll ServicesAdministrative ServicesConstruction ContractCertified QuestionNew York Law
References
16
Case No. MISSING
Regular Panel Decision

New York City Transit Authority v. New York State Public Employment Relations Board

The New York City Transit Authority (NYCTA) initiated a CPLR article 78 proceeding to challenge a June 16, 2009, determination by the New York State Public Employment Relations Board (PERB). PERB's determination reversed an earlier administrative law judge's decision, finding that the NYCTA had committed an improper labor practice by unilaterally implementing new standards for off-duty secondary employment without negotiating with the Transport Workers Union of Greater New York, Local 100. PERB directed the NYCTA to make whole certain employees and subsequently filed a cross-petition to enforce its order. The court found that PERB's determination was supported by substantial evidence, noting that an employer's restriction on nonworking time is generally a mandatory subject of negotiations under the Taylor Law. Consequently, the court confirmed PERB's determination, denied the NYCTA's petition, dismissed the proceeding on the merits, and granted PERB's cross-petition for enforcement of its remedial order.

Public EmploymentLabor RelationsCollective BargainingImproper Labor PracticeOff-Duty Secondary EmploymentCivil Service LawTaylor LawJudicial ReviewSubstantial EvidenceAdministrative Law
References
21
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