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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
May 14, 2007

Applegate v. Long Island Power Authority

The plaintiff, a highway maintenance worker, appealed an order granting summary judgment to defendants Keyspan Corporation and Long Island Power Authority. The plaintiff was injured when a utility cover collapsed while she was collecting debris on Keyspan property. The defendants successfully argued they neither created nor had actual or constructive notice of the latent defect causing the collapse. The court affirmed the summary judgment, finding the plaintiff failed to raise a triable issue of fact regarding the defendants' responsibility for the latent defect.

Personal InjurySummary JudgmentPremises LiabilityLatent DefectConstructive NoticeHighway Maintenance WorkerUtility Cover CollapseAppealsSuffolk CountyProperty Owner
References
4
Case No. ADJ3835415 (GOL 0098582)** **ADJ4033599 (GOL 0098581)** **ADJ6836655** **ADJ7026039
Regular
Mar 04, 2019

GARY MILLS vs. AMERICAN SEDGWICK SERVICES

This case involves applicant Gary Mills seeking reconsideration of a joint award for 100% permanent total disability resulting from multiple industrial injuries sustained as a paramedic. The defendant argues that the disability should be apportioned between the separate injury dates. However, medical experts, including the Agreed Medical Examiner in orthopedics, found it medically impossible to apportion the applicant's permanent total disability between the various injuries and subsequent complications. The Board affirmed the WCJ's decision, holding that an unapportioned award is justified when medical evidence prevents precise apportionment, particularly when complications from medical treatment directly cause the permanent total disability.

Permanent Total DisabilityApportionmentAgreed Medical ExaminerCumulative TraumaSpecific InjuryJoint Findings of Fact and AwardPetition for ReconsiderationWCJBenson ApportionmentKite case
References
9
Case No. MISSING
Regular Panel Decision

Meyers v. Epstein

This case concerns a motion in limine filed by the plaintiffs, Samara Meyers and her parents, in a 'ghost surgery' case. The plaintiffs allege that a different surgeon, Dr. Ira Richmond Abbott, performed brain surgery on Samara than the one they consented to, Dr. Fred Epstein. Following the surgery, Samara experienced severe complications including left side paralysis and cognitive impairments. The plaintiffs sought to recover damages for these complications, arguing that they were proximately caused by the unauthorized surgery. However, the court denied their motion, ruling that under New York law, a plaintiff cannot recover for injuries that would have foreseeably resulted from the surgery even if performed by the consented doctor, especially without evidence of negligent performance. The court limited potential recovery to nominal damages and mental anguish for the unauthorized act itself, not the inherent risks or consequences of the surgery.

Ghost surgeryBatteryMedical malpracticeInformed consentCausationDamagesMotion in limineBrain surgery complicationsProximate causeIntentional torts
References
18
Case No. MISSING
Regular Panel Decision

Patterson v. City of New York

The plaintiffs, employees of Grow-Kiewit-Catapano, filed a personal injury lawsuit against Sverdrup & Parcel Consultants, Inc., and the City of New York, alleging injuries from improper air pressure regulation during sewer tunnel construction. They claimed to suffer from "caisson disease," discovered years after their work ended. Sverdrup moved to dismiss, arguing the action was time-barred by the three-year Statute of Limitations (CPLR 214[5]). The plaintiffs countered that CPLR 214-c, which allows for discovery-based accrual in cases involving latent injuries from toxic substances, applied. The appellate court reversed the lower court's denial of dismissal, holding that compressed air, despite its potential to cause latent injuries when improperly regulated, does not qualify as a "toxic substance" under CPLR 214-c. Consequently, the action was deemed untimely, leading to the dismissal of the complaint and all cross-claims against both defendants.

Personal InjuryStatute of LimitationsLatent InjuryToxic SubstanceCaisson DiseaseCompressed AirSewer Tunnel ConstructionOccupational DiseaseAppellate ReviewCPLR 214-c
References
5
Case No. MISSING
Regular Panel Decision

Noce v. Wilmorite, Inc.

Plaintiff Louis Noce commenced an action against several defendants, including Wilmorite, Inc. and various contractors, for personal injuries allegedly sustained due to cold conditions during renovation work at his employment with Western Regional OTB. Plaintiff claimed he suffered from hypothermia, pneumonia, and aggravation of COPD. The defendants moved for summary judgment, asserting the claim was time-barred by New York's three-year negligence Statute of Limitations (CPLR 214). Plaintiff argued his claim should be governed by CPLR 214-c, providing a discovery rule for latent injuries from exposure to substances. The court determined that "cold air" does not qualify as a "substance" under CPLR 214-c and that its effects are immediate, not latent. Furthermore, even if CPLR 214-c applied, the plaintiff was aware of his injury more than three years before commencing the action. Consequently, the court granted the defendants' motion for summary judgment, dismissing the complaint against all parties.

Summary JudgmentStatute of LimitationsPersonal InjuryNegligenceLatent EffectsToxic TortsCPLR 214CPLR 214-cHypothermiaPneumonia
References
4
Case No. LBO 0370243
Regular
May 19, 2008

JOEL GRIMALDO vs. ABBEY EVENT SERVICES / STELLAR EVENT \& PRESENTATION, AMERICAN HOME INSURANCE, AIG CLAIMS SERVICES

The Workers' Compensation Appeals Board granted reconsideration and reversed a previous finding, ruling that the applicant's diabetes was not industrially caused. While the applicant sustained an admitted industrial injury to his left foot, the Board found substantial medical evidence indicating his diabetes was a pre-existing condition that complicated the foot injury rather than being caused by it. Consequently, the decision was amended to exclude diabetes as an industrial injury.

Workers' Compensation Appeals Boardindustrial injurydiabetesfoot injuryosteomyelitisamputationcausationmedical evidencereconsiderationapportionment
References
8
Case No. ADJ8202473
Regular
Jun 05, 2014

KEVIN COMPARAN vs. LDI TRUCKING, INC., CALIFORNIA INSURANCE GUARANTEE ASSOCIATION, ULLICO CASUALTY COMPANY, SEDGWICK

The Workers' Compensation Appeals Board denied reconsideration of a "take nothing" finding for Kevin Comparan. Comparan alleged injury while lifting a truck tire, but co-worker testimony contradicted his account. The employer's unusual practice of reimbursing non-industrial medical bills complicated the case. Ultimately, the applicant failed to meet his burden of proof that the injury occurred at work, leading to the denial of his petition.

Workers' Compensation Appeals BoardPetition for ReconsiderationWCJ ReportGarza v. Workmen's Comp. Appeals Bd.LDI TruckingCalifornia Insurance Guarantee AssociationUllico Casualty CompanySedgwickDiesel MechanicLow Back Injury
References
1
Case No. ADJ9200265
Regular
Feb 25, 2014

VICTOR GARCIA vs. LAKESIDE VILLAS HOME OWNERS ASSOCIATION, EMPLOYERS COMPENSATION INSURANCE COMPANY

The Workers' Compensation Appeals Board granted reconsideration and rescinded an Order Approving Compromise and Release (OACR) due to defective service on the applicant. The Board also found potential procedural errors regarding the representation of the applicant by a non-attorney from a law firm. The matter was returned to the trial level for further proceedings and a new decision, as the applicant had since dismissed his attorney, complicating potential cures for the alleged Rule 10773(b) violation.

Petition for ReconsiderationOrder Approving Compromise and ReleaseNotice of Representation by Non-Attorneydefective servicetimely filingRule 10773(b)law firm employeewalk-through C&Rrescinded orderreturn to trial level
References
4
Case No. ADJ1038622
Regular
Nov 19, 2012

PAUL SOTEROPOULOS vs. LOS ANGELES COUNTY FIRE DEPARTMENT

The Workers' Compensation Appeals Board denied the applicant's reconsideration of a prior decision. The Board affirmed the finding that the applicant, a firefighter, did not sustain an injury arising out of and in the course of employment for his testicular cancer. The Board found the agreed medical evaluator's opinion on the latency period provided substantial evidence to rebut the statutory presumption. Furthermore, the Board determined the applicant's hernia was a complication of non-industrial cancer treatment, thus controverting the presumption of compensability for hernias.

Workers' Compensation Appeals BoardPaul SoterepoulosLos Angeles County Fire DepartmentReconsiderationFirefighterRight Testicular CancerHerniaLabor Code Section 3212.1Presumption of CompensabilityLatency Period
References
2
Case No. ADJ9635847
Regular
Oct 07, 2016

GANNON MASZK vs. CITY OF CARLSBAD

This case involves a workers' compensation claim for a hiatal hernia, GERD, and Barrett's Esophagus. The defendant sought to apportion the applicant's permanent disability, arguing that the presumed industrial cause of the hernia did not extend to subsequent GERD complications. However, the Appeals Board denied reconsideration, finding that the medical examiner's apportionment was not based on the *cause of the permanent disability*, but rather on the *cause of the injury*. Therefore, in the absence of legally sufficient apportionment, the applicant was awarded unapportioned permanent disability.

WCABGannon MaszkCity of CarlsbadKeenan AssociatesADJ9635847Petition for ReconsiderationFindings and Awardcumulative traumahiatal herniaGERD
References
2
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