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

Case No. 2021 NY Slip Op 07401
Regular Panel Decision
Dec 23, 2021

Matter of Carola B.-M. v. New York State Off. of Temporary & Disability Assistance

Petitioners Carola B.-M. and Tiara M. challenged the denial of their supplemental nutrition assistance program (SNAP) benefits by the New York State Office of Temporary and Disability Assistance and the Orleans County Department of Social Services. The benefits were denied because they were deemed ineligible college students. The Appellate Division, Fourth Department, reversed this determination, holding that participation in the Adult Career and Continuing Education Services, Vocational Rehabilitation program (ACCES-VR) qualifies as a Job Training Partnership Act (JTPA) program. This status exempts the students from certain SNAP eligibility requirements. The court found that the original determination was based on an unreasonable interpretation of relevant regulations, annulled the decision, granted the petition, and remitted the case for a calculation of retroactive benefits.

SNAP benefitscollege student eligibilityJob Training Partnership ActACCES-VRvocational rehabilitationCPLR article 78regulatory interpretationpublic assistancefood stampsAppellate Division
References
28
Case No. MISSING
Regular Panel Decision

Claim of Bruzzese v. Guardsman Elevator Co.

In 1994, the claimant sustained head, neck, and back injuries at work, leading to an award for permanent partial disability, which included a wage expectancy adjustment under Workers’ Compensation Law § 14 (5). Following back surgery in 1998, the case was reopened, and the claimant was found to be temporarily totally disabled. Benefits for this temporary total disability were calculated based on the claimant's average weekly wage at the time of injury, without applying the wage expectancy adjustment. The claimant appealed, arguing that since the permanent partial disability preceded the temporary total disability, the wage expectancy adjustment should also apply to the latter period. The court disagreed, affirming the Workers’ Compensation Board's decision, citing established case law that Workers’ Compensation Law § 14 (5) is applicable only to awards for permanent partial disability and not temporary disability.

Wage expectancyTemporary total disabilityPermanent partial disabilityWorkers' Compensation benefitsBack injuryAppellate reviewDisability calculationWorkers' Compensation BoardAverage weekly wage
References
1
Case No. SDO 0328208
Regular
Mar 17, 2008

ARMANDO ADAME vs. AUTOMOTIVE ENGINEERED PRODUCTS, INC. (dba JBA HEADERS), ZENITH INSURANCE COMPANY

The Appeals Board clarified that for Labor Code section 4656(c)(1) purposes, the commencement of temporary disability payments is the date the employer first mails a temporary disability indemnity check, not when EDD benefits begin. Furthermore, EDD benefits, even if reimbursed by the employer, do not count towards the 104-week cap on temporary disability payments. Consequently, the employer's liability for further temporary disability payments extends from the date of the first actual indemnity payment until October 6, 2007.

Workers Compensation Appeals BoardArmando AdameAutomotive Engineered ProductsZenith Insurance CompanyLabor Code section 4656(c)(1)Temporary Total DisabilityTemporary Disability IndemnityEmployment Development DepartmentUnemployment Compensation DisabilityHawkins v. Amberwood Products
References
2
Case No. ADJ3301256 (OXN 0137983)
Regular
Nov 13, 2015

TIMI WAVEREK vs. VENTURAL YOUTH CORRECTIONAL FACILITY, Legally Uninsured, STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board granted the applicant's Petition for Reconsideration regarding temporary disability indemnity benefits. The Board agreed with the trial judge's recommendation to rescind the prior award and defer the issues of temporary disability indemnity benefits and penalties. The case is returned to the trial level for further proceedings to properly award temporary partial disability on a wage loss basis.

Workers' Compensation Appeals BoardPetition for ReconsiderationFindings and Awardtemporary disability indemnitywage loss basisLabor Code Section 5803Labor Code Section 4654Labor Code Section 4657Report and Recommendationdeferred issues
References
0
Case No. MISSING
Regular Panel Decision
Aug 02, 2012

Keefe v. Aramatic Refreshment Services Inc.

The claimant had two established workers' compensation claims for back injuries from 2004 and 2009, with benefits equally apportioned. The dispute arose regarding the calculation of benefits for the 2009 claim, specifically whether to use the claimant's 2009 wages or the higher 2004 wages. The Workers’ Compensation Board ruled that the 2009 wages should be used for the 2009 claim, aligning with Workers’ Compensation Law § 15 (5) and § 15 (7). The Appellate Division affirmed this aspect of the Board's decision. However, the Board's unexplained reduction of a temporary total disability award to a marked temporary partial disability was found to be an error, leading to a remittal of the matter to the Board for further proceedings to address this inconsistency.

Workers' CompensationBack InjuriesDisability BenefitsWage CalculationTemporary Partial DisabilityTemporary Total DisabilityStatutory InterpretationRemittalApportionmentJudicial Review
References
3
Case No. ADJ4254212 (SAC 0369491) ADJ3966016 (SAC 0369493)
Regular
Jul 19, 2010

Salem Najjar vs. MEEKS BUILDING CENTER, ZURICH AMERICAN INSURANCE COMPANY

The Appeals Board granted reconsideration, finding that a payment for attending a medical-legal examination under Labor Code section 4600(e)(1) does not trigger the 104-week limit on temporary disability indemnity under Labor Code section 4656(c)(1). The Board clarified that such payments are for wage loss reimbursement, not a commencement of actual temporary disability, distinguishing it from prior cases where other benefit types functionally served as temporary disability. The case was remanded to determine the actual date temporary disability payments began to establish the correct duration of benefits. Applicant's claim for temporary disability from March 17, 2009, and continuing will be re-evaluated.

Labor Code section 4656(c)(1)temporary disability indemnity104 week limitationmedical examinationQualified Medical Evaluation (QME)wage lossreconsiderationWCJLabor Code section 4600(e)(1)aggregate disability payments
References
5
Case No. ADJ6659926 ADJ6659223
Regular
Jan 06, 2012

MICHELLE JIMENEZ vs. DENCO SALES COMPANY, ACE PROPERTY AND CASUALTY COMPANY, ARGONAUT INSURANCE COMPANY

This case concerns applicant Michelle Jimenez's claim for additional temporary disability benefits for lumbar spine injuries sustained from a specific injury in July 2007 and a cumulative trauma injury ending in July 2008. The Appeals Board found that while the 2007 injury's temporary disability indemnity limit under Labor Code section 4656(c)(1) expired in August 2009, the applicant is entitled to remaining temporary disability under section 4656(c)(2) for the 2008 cumulative trauma injury. Because the applicant had only received 69 weeks of temporary disability for the cumulative trauma injury and is entitled to 104 weeks within five years of the injury date, she is awarded an additional 35 weeks of temporary disability indemnity prior to July 17, 2013.

Labor Code section 4656temporary disability indemnityaggregate disability paymentscompensable weeksperiod of two yearsperiod of five yearsdate of commencementdate of injurycumulative trauma injuryspecific injury
References
4
Case No. ADJ9158320, ADJ6695957
Regular
Oct 23, 2017

Marvin Rogers vs. American Medical Response, ACE American Insurance Company

This case concerns a workers' compensation insurer seeking credit for overpaid temporary disability benefits. The applicant, Marvin Rogers, sustained a lumbar spine injury as a paramedic. The insurer paid temporary disability benefits beyond the applicant's permanent and stationary date, but sought credit at the full overpaid amount against permanent disability indemnity. The Appeals Board denied the defendant's petition for reconsideration, upholding the administrative law judge's decision to allow credit only at the lower permanent disability indemnity rate. This denial was based on equitable principles and the fact that the applicant did not act in bad faith, preventing prejudice to the injured worker.

Petition for ReconsiderationTemporary Disability IndemnityPermanent DisabilityCreditOverpaymentLabor Code section 4909Discretionary AuthorityEquitable PrinciplesGood FaithEstoppel
References
9
Case No. ADJ9570277
Regular
Mar 07, 2018

WILLIAM SERA vs. CITY OF LOS ANGELES, TRISTAR RISK MANAGEMENT

The Workers' Compensation Appeals Board granted the defendant's petition for reconsideration and rescinded the award of continuing temporary disability benefits. The applicant, William Sera, a retired police detective, claimed temporary disability following lumbar surgery for a presumed industrial injury. The Board found that Sera had voluntarily retired from the labor market for reasons unrelated to his injury and therefore had no demonstrated earning capacity post-retirement to be replaced by temporary disability benefits. Because he did not establish an intent to continue working after retirement, he was not entitled to temporary disability indemnity after his surgery.

Petition for ReconsiderationTemporary Total DisabilityCumulative Trauma InjuryLumbar SurgeryService RetirementLabor MarketEarning CapacityVoluntary RetirementIndustrial InjuryFindings of Fact and Award
References
3
Case No. ADJ12340832
Regular
Sep 14, 2022

JOSE PEREZ vs. VILLA PARK LANDSCAPE, CALIFORNIA INSURANCE COMPANY, APPLIED RISK SERVICES

The applicant sought reconsideration of an award that found industrial injury to his back and entitled him to disability benefits, but also granted the defendant a credit for temporary disability overpayment. The Appeals Board affirmed the award of disability benefits but deferred the issue of the credit for temporary disability overpayment. This deferral is due to the defendant failing to present evidence or provide a clear explanation for the alleged overpayment, and the potential conflict between temporary and permanent disability indemnity purposes. Further proceedings are recommended to determine if the credit should be awarded.

WCABReconsiderationFindings of Fact and AwardIndustrial InjuryTree TrimmerTemporary DisabilityPermanent DisabilityCredit for OverpaymentAgreed Medical Examination (AME)Primary Treating Physician (PTP)
References
12
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