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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

Loblaw, Inc. v. Employers' Liability Assurance Corp.

Loblaw, Inc., a self-insured retail chain, sued its excess insurer, Employers’ Liability Assurance Corporation, for reimbursement under a workers’ compensation policy. The dispute centered on whether Loblaw timely notified Employers’ of an employee's escalating injury claim. Loblaw initially believed the claim would not exceed its $25,000 self-retention, delaying notice until June 1972, despite warnings from its agent and mounting costs. The Supreme Court, Erie County, initially sided with Loblaw, but the Appellate Division reversed, ruling Loblaw had an ongoing obligation to notify the insurer and was derelict by May 1969. This court affirmed the Appellate Division's dismissal of Loblaw's complaint, holding that the notice given in June 1972 was too late as a matter of law, given the claim had exceeded $21,000 by December 1970.

Insurance policy interpretationWorkers' compensationExcess insuranceNotice provisionSelf-insurerTimely noticeAppellate reviewContract constructionObjective standardSubjective judgment
References
22
Case No. MISSING
Regular Panel Decision

In re the Claim of Finchum v. Colaiacomo

The Workers’ Compensation Board issued an amended decision ruling against further development of the record on the employer’s liability under Workers’ Compensation Law § 56, and later denied the employer's request for reconsideration. The claimant was involved in a serious automobile accident while driving for an uninsured employer, leading to complex proceedings where the employer sought to assign liability to a general contractor, Cleanway Industries, Inc., and its insurer, Travelers Insurance Company. The appellate court found that the Board abused its discretion by sua sponte rescinding its prior directive to further develop the record, particularly without a compelling reason or apparent regulatory authorization. The court noted that the issue of liability had been pending for years and there were potential reasonable excuses for the employer's absence at certain hearings. Consequently, the appellate court reversed the Board's decisions and remitted the matter for further proceedings consistent with its ruling.

Workers' Compensation LawBoard DiscretionAbuse of DiscretionRecord DevelopmentWaiver DefenseUninsured EmployerGeneral Contractor LiabilityInsurance CoverageAppellate ReviewRemittal
References
3
Case No. MISSING
Regular Panel Decision

Employers Insurance v. General Accident, Fire & Life Assurance Corp.

Employers Insurance of Wausau (Wausau) sought summary judgment for 50% reimbursement of a $500,000 settlement and defense costs. The settlement stemmed from an underlying personal injury action where Frank Rayno, an employee of Sage Garage, was injured on a construction site in 1976. Wausau provided workers' compensation and employer's liability insurance to Sage Garage, while General Accident provided general liability coverage. Wausau paid the full settlement and then pursued General Accident for contribution. General Accident argued for a pro rata contribution based on policy limits. The court granted Wausau's motion for summary judgment, ruling that both insurers should contribute equally up to the limit of the smaller policy, which was General Accident's $500,000 policy, meaning General Accident owed $250,000. The defendants' cross-motion was denied.

Insurance disputeSummary judgmentDeclaratory judgmentContribution among insurersReimbursementPolicy limitsEmployer's liability insuranceGeneral liability insuranceWorkers' compensationPro rata contribution
References
0
Case No. MISSING
Regular Panel Decision

United States Equal Employment Opportunity Commission v. Johnson & Higgins

The Equal Employment Opportunity Commission (EEOC) sued Johnson & Higgins (J&H) over a mandatory pre-65 retirement policy that violated the Age Discrimination in Employment Act (ADEA). The Court previously found J&H liable and issued an injunction. J&H then sought partial summary judgment to dismiss claims for monetary and injunctive relief based on waivers signed by thirteen retired employee-directors, who had received $1,000 in exchange for waiving ADEA rights. The retired directors later repudiated these waivers, citing conflict of interest, economic duress, and undue influence. The EEOC opposed the waivers, arguing inadequate consideration, lack of voluntariness, and that J&H negotiated them without EEOC participation after a finding of liability. The District Court denied J&H's motion for summary judgment, finding material issues of fact regarding the adequacy of consideration and the voluntariness of the waivers. The court also held that waivers entered into after a finding of liability and without EEOC participation are invalid as a matter of law.

Age Discrimination in Employment ActADEAWaiversSummary JudgmentKnowing and VoluntaryConsiderationOlder Workers Benefit Protection ActOWBPARepudiation of WaiversEEOC Litigation
References
16
Case No. 2017 NY Slip Op 07023 [154 AD3d 1037]
Regular Panel Decision
Oct 05, 2017

Matter of Passero v. Uninsured Employers' Fund

The claimant, Edmund Passero, a bricklayer, filed a workers' compensation claim in 2011 for an occupational disease resulting from repetitive stress. A Workers' Compensation Law Judge (WCLJ) initially established the claim against DeSpirit Mosaic & Marble Co. and later apportioned liability among three employers, including J. William Pustelak Inc., found to be uninsured. The Uninsured Employers' Fund (UEF) sought administrative review, but the Workers' Compensation Board denied the appeal as untimely. The Appellate Division, Third Department, reversed the Board's finding on the timeliness of UEF's application, holding that UEF would not have incurred an obligation until the WCLJ's December 2014 decision which apportioned liability. The case was remitted to the Workers' Compensation Board to consider the merits of UEF's appeal.

Workers' CompensationOccupational DiseaseUntimely AppealAdministrative ReviewLiability ApportionmentUninsured EmployerDate of DisablementThird DepartmentAppellate DivisionClaimant Benefits
References
5
Case No. MISSING
Regular Panel Decision

Chiasera v. Employers Mutual Liability Insurance

Plaintiffs August and Helen Chiasera sought to dismiss an affirmative defense raised by defendant Ignatius S. Bertola, M.D., and Employers Mutual Liability Insurance Company of Wisconsin. August Chiasera alleged injury during a medical examination performed by Dr. Bertola, who was employed by the workers' compensation carrier, Employers Mutual, to evaluate a prior back injury. The defendants contended the claim was for medical malpractice, thus time-barred. The court ruled that no physician-patient relationship existed between Chiasera and Bertola, as the examination served the insurance company's interests, not for treatment. Consequently, the claim was for ordinary negligence, subject to a three-year Statute of Limitations. The plaintiffs' motion to dismiss the affirmative defense was granted.

NegligenceMedical MalpracticeStatute of LimitationsPhysician-Patient RelationshipWorkers' CompensationInsurance ExaminationDuty of CareCPLR 214Affirmative DefenseMotion to Dismiss
References
6
Case No. MISSING
Regular Panel Decision

Faison v. City of New York Department of Human Resources

The case concerns an appeal from decisions of the Workers’ Compensation Board regarding liability for a claimant’s reopened case. The claimant sustained a permanent partial disability in 1991 and her case was closed in 1993. In 2001, she applied to reopen it. A Workers’ Compensation Law Judge and subsequently a Board panel found that the employer voluntarily made advance payments of compensation within three years of the application, thereby making the employer, not the Special Fund for Reopened Cases, liable for disability payments. The employer appealed this decision. The appellate court examined whether the employer's payment of wages, deducted from sick leave, constituted an 'advance payment of compensation' with an acknowledgment of liability. The court found that wages paid from sick leave are not advance payments of compensation, and there was no substantial evidence that the employer’s payments were made voluntarily in recognition of continuing liability. Therefore, the Board's decision was reversed, and liability was transferred to the Special Fund for Reopened Cases.

Permanent Partial DisabilityReopened CaseAdvance Payments of CompensationSick LeaveEmployer LiabilitySpecial Fund for Reopened CasesWorkers' Compensation Law § 25-aAppellate ReviewSubstantial EvidenceRemittitur
References
8
Case No. MISSING
Regular Panel Decision

In re the Claim of Ryan v. Metropolitan Property & Liability

The claimant sustained a stress-related injury while employed by Metropolitan Property & Liability, also holding concurrent employment as a waitress. Her average weekly wage was calculated based on both employments. Metropolitan's insurance carrier, Travelers/Aetna, sought reimbursement from the Special Funds Conservation Committee under Workers’ Compensation Law § 14 (6) and § 15 (8). The Workers’ Compensation Board rescinded the initial reimbursement, ruling the entire award should be charged against the carrier as its maximum liability was $150. The carrier and Metropolitan appealed this decision, but the appellate court affirmed the Board's ruling, stating that the employer's liability would not be greater than under previous law for dissimilar concurrent employment, thus warranting no reimbursement from the Special Funds.

Workers' CompensationConcurrent EmploymentStress-related InjuryAverage Weekly WageReimbursementSpecial Funds Conservation CommitteePermanent Partial DisabilityLump-sum AdjustmentInsurance Carrier LiabilityDissimilar Employment
References
2
Case No. 2016 NY Slip Op 00623 [136 AD3d 410]
Regular Panel Decision
Feb 02, 2016

Marzec v. City of New York

Plaintiff Richard Marzec alleged he was assaulted by a worker at a construction site while walking on a pedestrian walkway. The assailant, though employed by a security company, was performing flagman duties for a subcontractor. Marzec sued the landowners, Amsterdam & 76th Street Associates, LLC and Related Amsterdam & 76th Street Associates, LLC, and the construction manager, Monadnock Construction, Inc., asserting claims including premises liability, respondeat superior, negligent hiring, and negligent supervision. On appeal, Marzec focused on whether Monadnock could be held vicariously liable as a special employer. The court affirmed the dismissal of the claim, finding that Monadnock's supervisory powers over the flagman's duties were only general and insufficient to establish a special employment relationship, thus precluding vicarious liability.

Vicarious LiabilitySpecial EmployerNegligent SupervisionNegligent HiringPremises LiabilityConstruction Site AccidentAssaultSummary JudgmentAppellate DivisionControl Over Work
References
3
Case No. 2021 NY Slip Op 00322 [190 AD3d 876]
Regular Panel Decision
Jan 20, 2021

State Farm Mut. Auto. Ins. Co. v. Klein

The plaintiff, State Farm Mutual Automobile Insurance Co., initiated a subrogation action to recoup damages paid to its insureds following a vehicle accident. The case involved a third-party action where defendants/third-party plaintiffs Traci B. Klein and Marie A. Michel sought indemnification from Recco Health Corporation et al., arguing Recco was Michel's employer under the Consumer Directed Personal Assistance Program (CDPAP) and therefore vicariously liable. The Supreme Court, Nassau County, granted Recco's motion for summary judgment, concluding Michel was not their employee for vicarious liability purposes. The Appellate Division, Second Department, affirmed this decision, holding that CDPAP regulations do not grant fiscal intermediaries control over caregivers' methods, a key factor in determining an employer-employee relationship for vicarious liability.

SubrogationVicarious LiabilityRespondeat SuperiorSummary JudgmentMedicaid ProgramConsumer Directed Personal Assistance Program (CDPAP)Fiscal IntermediaryEmployer-Employee RelationshipAppellate DivisionProperty Damage
References
4
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