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

Case No. G107 435
Regular Panel Decision
Jun 02, 2023

Matter of Marku v. ABM Industries

This case concerns the claim of Denise Perry under the Workers' Compensation Law. The Workers' Compensation Law Judge (WCLJ) previously found that the employer, Adventist Home Care, established a violation of Workers' Compensation Law § 114-a by the claimant for willfully making false statements to obtain benefits. Consequently, the WCLJ disallowed indemnity benefits and imposed both mandatory and discretionary penalties. A Board Panel decision filed on February 17, 2022, affirmed the WCLJ's findings. The claimant subsequently filed an application for reconsideration on March 18, 2022, which the Board Panel reviewed. After considering the claimant’s arguments, the Board Panel determined that the application did not raise new issues or present new material evidence, nor did it demonstrate an erroneous statement of material fact or law in the prior decision. Therefore, the Board Panel, by a majority vote, affirmed its prior decision.

Workers' Compensation FraudFalse RepresentationIndemnity Benefits DisallowanceWCL § 114-a PenaltyApplication for Reconsideration DeniedBoard Panel AffirmationWillful MisrepresentationWorkers' Compensation Law Judge DecisionEmployer Established Violation
References
0
Case No. MISSING
Regular Panel Decision

Matter of Burns v. New York State Workers' Compensation Board

Claimant sought workers' compensation benefits due to injuries from an automobile accident. As an employee of the Workers’ Compensation Board, his claim was processed through a neutral outside arbitration process. An arbitrator established his claim and average weekly wage. Claimant appealed, arguing his average weekly wage should have been calculated differently due to a recent promotion, as per Workers’ Compensation Law § 14 (2). An arbitration panel declined to address this argument because it was not raised before the arbitrator. The appellate court affirmed the panel's decision, citing that the panel could decline review of issues not previously raised, consistent with 12 NYCRR 300.13 [e] [1] [iii].

ArbitrationAverage Weekly WageWorkers' CompensationAppellate ReviewIssue PreservationAdministrative LawProcedural Due ProcessStatutory InterpretationWorkers’ Compensation Board
References
2
Case No. MISSING
Regular Panel Decision

Claim of Mulligan v. Workers' Compensation Board

The claimant, a former workers' compensation law judge, appealed the denial of reduced earning benefits, which stemmed from his claim that stress from his job caused him to voluntarily withdraw from the labor market. He had previously received benefits for a 1995 angina attack. An arbitrator and subsequent arbitration panel concluded that he voluntarily withdrew from the labor market, a determination the claimant contested, asserting his retirement was due to work-related stress. The court, led by Judge Carpinello, found substantial evidence supported the panel's decision, noting the claimant never complained of stress to supervisors, sought accommodations, or applied for disability retirement. The court affirmed the arbitration panel's decision, denying the claimant's appeal.

Voluntary Withdrawal from Labor MarketReduced Earning BenefitsWorkers Compensation BenefitsArbitration Panel DecisionSubstantial EvidenceDisability RetirementJob-Related StressAppellate ReviewLabor Market WithdrawalClaim Denial
References
8
Case No. ADJ10542261, ADJ10738226
Regular
Nov 01, 2017

MARTIN DUENAS REYES vs. HIS LIFE WOODWORKS, AMTRUST

The Workers' Compensation Appeals Board denied the applicant's Petition for Removal concerning a Joint Findings and Order that struck a Qualified Medical Evaluator (QME) panel. The Board affirmed the WCJ's finding that the panel was improperly obtained because the applicant requested it less than 10 days after the claim denial, violating Labor Code section 4062.2(b). Applicant failed to demonstrate substantial prejudice or irreparable harm from the panel being stricken, and can obtain a new panel following proper procedures.

Petition for RemovalJoint Findings and OrderQualified Medical Evaluator (QME)Labor Code section 4062.2(b)stricken panelcompensability disputedenial letter10-day waiting periodBahena v. Charles Virzi Constructionpremature panel request
References
1
Case No. WCB No. G076 2707
Regular Panel Decision
Dec 09, 2021

Matter of Duncan v. John Wiley & Sons, Inc.

This Board Panel Decision concerns an appeal by the applicant, Joseph Lafayette, regarding a Workers' Compensation Law Judge's (WCLJ) finding on the causal relationship of his back injury. The applicant sustained injuries to his back, neck, and shoulder during his employment. The WCLJ had previously established a causal relationship for the neck and shoulder injuries but disallowed the claim for the back injury. Upon review, the Board Panel determined that the medical evidence in the record supports a causal relationship between the claimant's employment and his lower back injury. As a result, the Panel modified the WCLJ's decision to establish a causal relationship for the back injury, while affirming the other aspects of the original decision.

Workers' CompensationBack InjuryNeck InjuryShoulder InjuryCausal RelationshipMedical EvidencePanel ReviewWCLJ DecisionModificationAppeal
References
2
Case No. MISSING
Regular Panel Decision

Leone v. Columbia Sussex Corp.

Alfred Leone sustained injuries when a scaffold plank broke at a construction site owned and operated by Columbia Sussex Corp. He was an employee of Smith Glass Co., a subcontractor, and the scaffold was erected by another subcontractor, Panelized Systems, Ltd. Columbia Sussex Corp. appealed orders denying its motion to amend its answer with a Workers’ Compensation Law defense and denying summary judgment on its third-party complaint against Panelized. The appellate court reversed the denial to amend, finding a question of fact on whether Leone was a special employee of Columbia, thus allowing the Workers' Compensation defense to be asserted. However, the court affirmed the denial of summary judgment for indemnification against Panelized, ruling contractual indemnification inapplicable and common-law indemnification premature.

Personal InjuryScaffold AccidentWorkers' Compensation LawSpecial EmploymentAmended AnswerSummary JudgmentContractual IndemnificationCommon-Law IndemnificationSubcontractor LiabilityConstruction Accident
References
9
Case No. G0699450
Regular Panel Decision
Aug 10, 2023

Matter of Von Maack v. Wyckoff Heights Medical Center

The claimant, Yvette Robles, sustained a work-related injury to her left knee. The Workers' Compensation Law Judge (WCLJ) initially established accident, notice, and causal relationship. However, the employer and carrier appealed, contending the claim was untimely filed. A Board Panel modified the WCLJ's decision, determining that the claim was barred by Workers' Compensation Law § 28 due to untimely filing. The Full Board subsequently affirmed the Board Panel's decision, upholding the bar to the claim.

Timeliness of ClaimWCL § 28Board Panel ReviewAccident, Notice, and Causal RelationshipLeft Knee InjuryEmployer AppealFull Board ReviewClaim BarredStatute of LimitationsWork-Related Injury
References
0
Case No. ADJ9975590; ADJ9976116
Regular
Feb 25, 2016

Ana Nieto vs. Avitus, Inc., American Zurich Insurance Company

The Workers' Compensation Appeals Board (WCAB) dismissed the defendant's petition for reconsideration, finding the appealed order was interlocutory and not subject to reconsideration. The WCAB treated the petition as one for removal and denied it, as the defendant failed to demonstrate substantial prejudice or irreparable harm. The defendant's contention that their trial exhibits and an orthopedic QME panel were erroneously stricken was rejected, as was their claim that the orthopedic QME panel was improperly denied. The defendant failed to provide sufficient evidence to support their request for an orthopedic QME panel over a chiropractic one.

Workers' Compensation Appeals BoardPetition for ReconsiderationPetition for RemovalJoint Findings of Fact & OrdersQualified Medical Evaluator (QME)Orthopedic Surgery QMEChiropractic QMETrial ExhibitsAdministrative Law Judge (WCJ)Labor Code § 4062.2
References
6
Case No. ADJ3225136
Regular
Apr 21, 2011

MICHAEL GIAMMONA vs. FISHER DEVELOPMENT AND TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA

The Workers' Compensation Appeals Board granted removal and rescinded a prior order that denied the defendant's motion for a new Qualified Medical Examiner (QME). The Board found that the applicant's post-evaluation, unserved letter to the QME constituted an ex parte communication, which is prohibited by statute and requires a new QME panel. Consequently, the QME's reports were stricken, and a new panel was ordered. The defendant's petition for reconsideration was dismissed as the original order was procedural, not final.

Panel Qualified Medical ExaminerPQMEEx parte communicationLabor Code Section 4062.3RemovalReconsiderationAdministrative law judgeWCJPain managementAutomobile accident
References
0
Case No. WCB No. G0699039
Regular Panel Decision
Sep 23, 2011

HARRIS, JEFFREY T. v. SCHMIDT, ASHLEY E.

Leo P. DiLuzio sustained work-related injuries to his neck, back, and left knee on July 19, 2005. He was classified with a permanent partial disability and received an additional 25 weeks of Schedule Loss of Use (SLU) for his left knee, making it a 50% SLU. The self-insured employer argued that the 525-week cap on indemnity benefits for concurrent SLU and PPD awards under Workers' Compensation Law § 15(3)(w) should apply, despite the pre-July 26, 2010 accident date. The Workers' Compensation Law Judge (WCLJ) ruled that the claimant was entitled to both SLU and PPD awards without the 525-week cap. The Board Panel affirmed the WCLJ's decision, referencing Matter of Sanchez and clarifying that the 525-week cap in § 15(3)(w) is applicable only to accidents occurring on or after July 26, 2010.

Workers' CompensationPermanent Partial DisabilitySchedule Loss of UseIndemnity BenefitsConcurrent AwardsStatutory InterpretationAccident DateLegislative AmendmentSection 15(3)(w)Section 15(3)(v)
References
1
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