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

Case No. ADJ4265715
Regular
Jul 14, 2010

ARNIE K. RAGLAND vs. METROPOLITAN PROVISION, ARGONAUT INSURANCE COMPANY

This case involves an applicant seeking retroactive vocational rehabilitation maintenance allowance (VRMA) benefits after the statutory basis for these benefits was repealed. The applicant's entitlement to VRMA from a specific date forward was established by a Rehabilitation Unit Determination that became final before the repeal. The Appeals Board granted reconsideration, rescinded the prior adverse finding, and remanded the case for determination of the specific VRMA amounts due based on that final Determination. Therefore, the applicant's right to VRMA from the date of the final Determination vested before the statute's repeal.

VRMAVocational RehabilitationVested RightLabor Code 139.5RepealRehabilitation UnitDeterminationWorkers' Compensation Appeals BoardIndustrial InjuryPermanent Disability
References
1
Case No. MISSING
Regular Panel Decision
Jun 29, 1992

Mark v. Eshkar

This case involves a plaintiff, owner of Manhattan premises, and defendants Eshkar and Jules Schapiro, whose adjacent building shared a party wall. Following rehabilitation work on Schapiro's building in 1984, minor damage to the party wall occurred. In 1989, more significant structural cracks appeared, attributed to allegedly faulty foundation work supervised by Eshkar. The trial court dismissed the plaintiff's negligence claim against Eshkar, deeming it barred by a three-year statute of limitations, which it held commenced in 1985 upon the issuance of the certificate of occupancy. The appellate court reversed this decision, ruling that the cause of action accrued in 1989 when the structural cracks became visible, aligning with the principle that the statute of limitations for damages resulting from loss of lateral support begins when such damages are sustained and become apparent.

Statute of LimitationsNegligenceReal PropertyParty WallConstruction DefectsAccrual of Cause of ActionLatent DefectsStructural DamageNew York LawAppellate Procedure
References
2
Case No. MISSING
Regular Panel Decision

Davis v. Isaacson, Robustelli, Fox, Fine, Greco & Fogelgaren, P. C.

Plaintiff Karl Davis sued attorney Bernard A. Kuttner for legal malpractice, alleging failure to pursue certain claims after a workplace injury in 1989. Kuttner moved to dismiss the lawsuit, arguing that the action was barred by the recently amended CPLR 214 (6), which shortened the statute of limitations for non-medical malpractice to three years and would have rendered Davis's claims, which accrued in 1991, time-barred by his 1997 filing against Kuttner. The court denied Kuttner's motion, ruling that applying the amended CPLR 214 (6) in this instance would unconstitutionally deprive the plaintiff of a reasonable time to bring suit, as the claims would have been immediately barred upon the amendment's effective date without legislative provision for a grace period. Consequently, the court held that the six-year statute of limitations previously in force applied, deeming Davis's claims timely.

Legal MalpracticeStatute of LimitationsCPLR 214 (6) AmendmentConstitutional LawDue ProcessRetroactivity of LawWorkers' Compensation ClaimNegligenceWorkplace InjuryMotion to Dismiss
References
27
Case No. MISSING
Regular Panel Decision

Ashmead v. Groper

The plaintiff appealed an order from the Supreme Court (Sullivan County), which dismissed their legal malpractice action against an attorney as barred by the Statute of Limitations. The plaintiff had initially retained the defendant attorney in 1981 for a workers' compensation claim, which closed in 1984 after an award for partial disability. In 1995, the plaintiff sued the attorney for negligence regarding the calculation of the average weekly wage. The Appellate Division affirmed the dismissal, rejecting the plaintiff's argument of continuous representation, stating that a professional's failure to act does not constitute such. The court found that the Statute of Limitations expired, at the latest, six years after the workers' compensation case closed in May 1984.

Legal MalpracticeStatute of LimitationsContinuous Representation DoctrineWorkers' CompensationAttorney NegligenceAppellate ReviewDismissalAffirmationNew York LawCivil Procedure
References
8
Case No. ADJ2860436
Regular
Dec 02, 2011

HAROLD DAVID WATSON vs. VANCE INTERNATIONAL, NATIONAL FIRE CO. OF PITTSBURGH PENNSYLVANIA

The applicant seeks reconsideration of a prior decision finding the employer's appeal of a vocational rehabilitation benefits determination was timely filed. The Appeals Board upheld its prior finding, determining that the employer filed its appeal on December 11, 2008, which was before the January 1, 2009 repeal of the vocational rehabilitation statute. Because the appeal was timely and the right to benefits was not vested prior to the repeal, the applicant is not entitled to vocational rehabilitation benefits.

Rehabilitation UnitVocational rehabilitation benefitsLabor Code section 139.5Appeal PetitionDeclaration of Readiness to ProceedPersonal serviceService by mailDocument Cover SheetWCAB District OfficeProof of service
References
50
Case No. ADJ873594 (SAC 0308813)
Regular
Dec 08, 2010

BILL FLOOD vs. PENSKE LOGISTICS, GALLAGHER BASSETT CLAIMS

This case involves a dispute over attorney's fees for vocational rehabilitation services. The applicant's attorney sought fees from funds withheld by the defendant prior to the repeal of Labor Code section 139.5, the statute governing vocational rehabilitation. The Appeals Board found that the attorney had a vested right to these fees because they accrued and were requested before the repeal. Therefore, the Board rescinded the denial order and directed the defendant to pay the withheld attorney's fees.

Vocational rehabilitationattorney's feesLabor Code section 139.5vested righten banc opinionpetition for reconsiderationcompromise and releasevocational rehabilitation maintenance allowancerepealsaving clause
References
2
Case No. ADJ2150246
Regular
Aug 05, 2009

RANDY CANISTER vs. CITY OF LOS ANGELES

The Workers' Compensation Appeals Board denied the City of Los Angeles' petition for reconsideration. The Board affirmed the workers' compensation judge's order requiring the City to pay untimely Vocational Rehabilitation Maintenance Allowance (VRMA) at the temporary disability rate plus a penalty. This decision was based on the finding that the City failed to appeal parts of a prior Rehabilitation Unit Determination awarding retroactive VRMA, thus making those awards final and enforceable despite the subsequent repeal of Labor Code section 139.5. Citing *Weiner v. Ralphs Company*, the Board reiterated that vested rights, even under repealed statutes, remain enforceable.

Vocational Rehabilitation Maintenance Allowance (VRMA)Labor Code section 139.5 repealvested rightsfinal orderadjudicationAppeals BoardRehabilitation Unittemporary disability (TD) ratepenaltyWeiner v. Ralphs Company
References
1
Case No. MISSING
Regular Panel Decision

City of New York v. State

This case addresses the constitutionality of Chapter 5 of the Laws of 1999, which attempted to rescind New York City's commuter tax for New York State residents while retaining it for out-of-State commuters. The City of New York challenged the statute on home rule grounds, while residents of New Jersey and Connecticut, along with the State of Connecticut, argued it violated the Federal Constitution's Privileges and Immunities and Commerce Clauses. The Court held that Chapter 5 did not violate state home rule provisions. However, it found the statute unconstitutional under the Federal Privileges and Immunities and Commerce Clauses due to its discriminatory treatment of out-of-State commuters. Consequently, the 'poison pill' provision of Chapter 5 took effect, leading to the repeal of the entire New York City commuter tax as of July 1, 1999.

Commuter TaxHome Rule ProvisionsPrivileges and Immunities ClauseCommerce ClauseConstitutional ChallengeState TaxationTax DiscriminationNew York CityLegislative PowerStatutory Repeal
References
40
Case No. MISSING
Regular Panel Decision
May 18, 1994

Claim of Boshart v. St. Francis Hospital

The claimant, a hospital employee, stopped working due to an aggravated preexisting back condition and filed a claim for workers' compensation benefits. Her claim was initially denied, but a Workers’ Compensation Law Judge found prima facie medical evidence for an occupational back condition. Upon appeal, the Workers' Compensation Board rejected the employer's contention that the claim was barred by Workers’ Compensation Law § 28, ruling the employer had waived this defense. The employer appealed this decision. The court affirmed the Board's decision, concluding that the employer failed to raise the Statute of Limitations defense at the first hearing where all parties were present, thereby waiving the right to assert it.

Workers' CompensationStatute of LimitationsWaiverOccupational DiseaseBack InjuryEmployer LiabilityAppellate ReviewProcedural DefenseInsurance ClaimBoard Decision
References
2
Case No. ADJ3031802 (SFO 0472389)
Regular
Dec 07, 2009

DONNELL WILLIAMS vs. RAMADA PLAZA HOTEL, STATE COMPENSATION INSURANCE FUND

The Appeals Board dismissed the petition for removal and granted the petition for reconsideration. The September 23, 2009 Findings were rescinded, and applicant was found not entitled to vocational rehabilitation benefits because his right did not vest before the relevant statute's repeal.

Vocational RehabilitationVRMAVesting of RightsRehabilitation Unit DeterminationAppeal PeriodLabor Code Section 139.5 RepealThreshold IssueFinal OrderInchoate RightsStatutory Repeal
References
10
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