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

Case No. 532194
Regular Panel Decision
Nov 10, 2022

In the Matter of the Claim of Marc Trombino

Claimant Marc Trombino, an iron worker, filed a workers' compensation claim in September 2016 for work-related lung conditions, including silicosis and chronic obstructive pulmonary disease, naming FMB Inc. as his employer. The claim was initially indexed against Phoenix Insurance Co., then corrected to Liberty Insurance Corporation after an investigation. Liberty disputed coverage, but a Workers' Compensation Law Judge (WCLJ) found prima facie evidence and established the claim, finding an occupational disease and permanent total disability. Liberty appealed, belatedly raising a lack of policy coverage for the work location. The Board remitted the matter for a hearing on coverage, during which Ace American Insurance Company was put on notice. The WCLJ and subsequently the Board invoked the doctrine of laches, barring Liberty from denying coverage due to its inexcusable delay in raising the defense and the resultant prejudice to Ace American. The Supreme Court, Appellate Division, Third Judicial Department, affirmed the Board's decision.

Workers' CompensationOccupational DiseaseSilicosisChronic Obstructive Pulmonary DiseaseLaches DoctrineInsurance Coverage DisputeAppellate ReviewPrima Facie EvidencePermanent Total DisabilityMedical Expert Testimony
References
7
Case No. MISSING
Regular Panel Decision

Fulton Boiler Works, Inc. v. American Motorists Insurance

Fulton Boiler Works, Inc., filed an action against several insurance companies regarding defense and indemnification for thousands of asbestos claims. The court addressed multiple pending motions for summary judgment, focusing on the proper allocation of indemnity costs among the liable parties, Fulton's obligation for uninsured years, the applicability of equitable estoppel against insurers, and Travelers' specific obligations concerning notice of claims and disclaimers. The court ruled that a pro rata allocation of indemnity costs is appropriate, with Fulton liable for periods it was uninsured. Equitable estoppel was deemed inapplicable to bar insurers from seeking contribution, and Travelers was found to have received proper notice for many claims and is barred from disclaiming coverage due to untimely disclaimers. This order, along with a previous one, sets the 'ground rules' for resolving past, pending, and future asbestos claims.

Asbestos LiabilityInsurance Coverage DisputeIndemnity AllocationSummary JudgmentEquitable EstoppelNotice ProvisionsDisclaimer of CoveragePro Rata AllocationInjury-in-factComprehensive General Liability Policy
References
23
Case No. CLAIM NO. 78
Regular Panel Decision

In Re DDI Corp.

This case concerns the application of excusable neglect to a late class proof of claim filed by Raymond Ferrari and other representatives on behalf of a putative class against DDi Corp., a debtor in a pre-arranged chapter 11 case. The claim was filed approximately six weeks after the bar date. The debtors moved to expunge the claim due to untimeliness and procedural defects, while the representatives cross-moved for leave to file late, arguing lack of actual notice. The court denied the cross-motion, finding that the class was an unknown creditor at the time the bar date notice was mailed, and therefore, excusable neglect was not established. Consequently, the debtors' motion to expunge Claim No. 78 was granted.

excusable neglectlate claimclass actionproof of claimbar datebankruptcysecurities fraudchapter 11actual noticeunknown creditor
References
10
Case No. MISSING
Regular Panel Decision

In re the Claim of Meyerovich

The claimant, a maintenance technician, was discharged for misconduct after his manager observed him loafing on the job and he subsequently filed a workers' compensation claim for a back injury, which the employer alleged was false. The Unemployment Insurance Appeal Board disqualified the claimant from receiving benefits due to misconduct, a decision it adhered to upon reconsideration. The appellate court affirmed the Board's decision, finding substantial evidence in the manager's testimony that she did not observe the claimant using a shovel during her observation, thus supporting the finding of a false workers' compensation claim and misconduct. The court also noted that conflicting testimony presented a credibility issue for the Board to resolve and that prior Workers' Compensation Board decisions were not final regarding the accidental injury issue, thus lacking collateral estoppel effect.

MisconductUnemployment Insurance BenefitsFalse Workers' Compensation ClaimSubstantial EvidenceCredibility IssueDischarge from EmploymentLoafingProbationAppeal Board DecisionAffirmation
References
6
Case No. MISSING
Regular Panel Decision

Claim of Schwartz v. State Insurance Fund

Claimant appealed two Workers' Compensation Board decisions. The first decision, filed April 25, 2012, ruled that her alleged cardiac conditions were not causally related to her established work-related stress claim. The second decision, filed May 2, 2012, denied her payment for intermittent lost time. The court affirmed both decisions, finding that the employer's independent medical examiner complied with Workers' Compensation Law § 137, and the Board's resolution of conflicting medical opinions regarding cardiac conditions was supported by substantial evidence. Additionally, the Board's determination that the claimant's Friday absences were for convenience, not disability, was also upheld by substantial evidence.

Workers' Compensation Board AppealsCausally Related DisabilityCardiac ConditionsHypertensionMitral Valve InsufficiencyTricuspid Valve InsufficiencyEnlarged Left AtriumWork-Related StressAdjustment DisorderIntermittent Lost Time Benefits
References
4
Case No. ADJ1857578
Regular
Jun 23, 2009

MIRNA LICEA vs. MINSON CORPORATION, CALIFORNIA INSURANCE GUARANTEE ASSOCIATION for PHICO INSURANCE COMPANY in liquidation

This case involves a lien claim by Missirian Orthopedic Medical Group, assigned to KM Financial Services, for medical treatment provided to Mirna Licea. The California Insurance Guarantee Association (CIGA), representing the insolvent insurer Phico Insurance Company, denied the lien based on Insurance Code § 1063.1(c)(9), which excludes claims by assignees. The Workers' Compensation Appeals Board denied reconsideration, affirming that the statute clearly prohibits payment to assignees, including medical providers who have assigned their accounts receivable. The Board relied on *Baxter Healthcare Corp. v. CIGA* for the principle that assigned claims are not "covered claims" under the Guarantee Act.

Workers' Compensation Appeals BoardCalifornia Insurance Guarantee AssociationCIGAPhico Insurance Companyliquidationinsolvent insurerlien claimantassigneecovered claimInsurance Code 1063.1(c)(9)
References
4
Case No. MISSING
Regular Panel Decision

Claim of Cerami v. Rochester City School District

This case involves an appeal from a Workers’ Compensation Board decision that found a claimant’s benefit claim untimely. The claim, filed in 1980, stemmed from a mental breakdown in 1966-1967 alleged to be work-related. The Board ruled the claimant was mentally competent to file within the two-year statutory period (WCL § 28), thus rejecting the tolling provision for mental incompetency (WCL § 115). The appellate court reviewed the medical testimony of Dr. Leve and Dr. Pisetzner, concluding the Board misconstrued their findings regarding the claimant’s capacity to comprehend his mental illness as work-related, despite general competence to file other claims. The court found overwhelming medical evidence indicated the claimant was mentally incapable of filing a claim for employment-induced mental illness and therefore deemed the claim timely under WCL § 115 due to continuing mental incapacity. Additionally, the court found substantial, virtually unanimous medical testimony confirming the work-related causation of the claimant’s mental illness, contrary to the Workers’ Compensation Law Judge’s determination. The decision was reversed, compensation benefits granted, and the matter remitted to the Board for further proceedings.

Workers' Compensation ClaimTimeliness of ClaimMental IncompetencyTolling Statute of LimitationsParanoid SchizophreniaEmployment-Induced Psychological InjuryCausal RelationshipMedical Testimony InterpretationAppellate ReviewReversal of Board Decision
References
3
Case No. MISSING
Regular Panel Decision

In re the General Assignment for the Benefit of Creditors of Well Bilt Box Spring Corp.

An assignee for the benefit of creditors moved to disallow a claim for priority filed by the United Furniture Workers Insurance Fund. The fund sought $480 for unpaid group welfare insurance premiums, which accrued from September 1947 to April 1948 under a collective bargaining agreement. The assignee contended that the Debtor and Creditor Law section 21-a did not provide priority for such claims, arguing it applied to employee-contributed pension plans, not employer-paid insurance. The court referenced conflicting precedents from Matter of Seaboard Furniture Mfg. Corp. (Frey) and Matter of Hollywood Commissary, Inc. (Weintraub). Adopting the view of Justice Walsh, the court ruled that this was a contract matter between the employer and union, not a claim for wages, and noted the claim was made by the insurance carrier rather than the union or employees. Consequently, the court disallowed the claim for priority and granted the assignee's application to settle their account.

Priority ClaimAssignee for CreditorsInsurance FundCollective Bargaining AgreementWelfare InsuranceEmployer ContributionsDebtor and Creditor LawSection 21-aWage ClaimContract Dispute
References
2
Case No. MISSING
Regular Panel Decision

In re the Claim of Keselman v. New York City Transit Authority

The claimant appealed two decisions by the Workers’ Compensation Board concerning a discrimination claim. In 1986, the claimant sustained a shoulder injury and was placed on disability retirement in 1990 by the self-insured employer. In 2001, the claimant filed a discrimination claim, alleging retaliation for filing a workers' compensation claim. Both a Workers' Compensation Law Judge and the Board found the discrimination claim untimely, as it was filed almost 11 years after the alleged discriminatory practice in 1990, exceeding the two-year statutory period under Workers’ Compensation Law § 120. The Appellate Division affirmed the Board's decision, rejecting the claimant's argument that the two-year period should start from a later Board decision.

workers' compensationdiscrimination claimtimelinessstatute of limitationsretaliationdisability retirementAppellate DivisionBoard decisionNew York lawjudicial review
References
4
Case No. 2022 NY Slip Op 06301
Regular Panel Decision
Nov 10, 2022

Matter of Trombino v. FMB Inc.

Marc Trombino, an iron worker, filed a workers' compensation claim in September 2016 for work-related lung conditions, including silicosis and chronic obstructive pulmonary disease, against his employer, FMB Inc. Initially, Phoenix Insurance Co. was indexed, but later Liberty Insurance Corporation was identified as the responsible carrier. Liberty disputed coverage only after the Workers' Compensation Law Judge (WCLJ) established the claim and found Trombino permanently totally disabled. The WCLJ and the Workers' Compensation Board applied the doctrine of laches, barring Liberty from denying coverage due to its inexcusable delay and the resulting prejudice to Ace American Insurance Company, another potential carrier. The Appellate Division, Third Department, affirmed the Board's decision, finding substantial evidence supported the application of laches.

Workers' Compensation BenefitsOccupational DiseaseSilicosisChronic Obstructive Pulmonary DiseaseLaches DoctrineInsurance Coverage DisputeAppellate DivisionPermanent Total DisabilityEmployer LiabilityMedical Opinion Rejection
References
7
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