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

Case No. ADJ954867 (SFO 0497953)
Regular
Dec 29, 2008

HERBERT BARRIOS vs. DEEP VAC, INC., STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board partially granted reconsideration, rescinding the award of attorney's fees for frivolous tactics but affirming the award for expert witness costs and a penalty for unreasonable refusal to pay. The Board found that while SCIF's refusal to pay for the diminished future earnings capacity expert was unreasonable, their actions did not rise to the level of bad faith or frivolous conduct required for sanctions. A dissenting opinion argued to affirm the original award of sanctions, finding SCIF's actions to be unreasonable and in bad faith based on prior unfavorable decisions and testimony from SCIF's claims adjustor.

Diminished Future Earnings CapacityVocational RehabilitationLabor Code section 5811Labor Code section 5814Labor Code section 5813Expert Witness FeesReconsiderationFindings and AwardSanctionsBad Faith Tactics
References
3
Case No. MISSING
Regular Panel Decision

MHM Sponsors Co. v. Hirsch

Petitioner, Ogdan CAP Properties LLC, initiated a holdover proceeding against respondent, Paulette Hirsch, seeking possession of her apartment. The petitioner claimed Hirsch unreasonably refused access for necessary repairs to the wood flooring, a repair mandated by a housing code violation. Hirsch defended her refusal by citing severe allergies to the glue used for floor installation, fearing adverse health effects. The court, applying an objective standard, determined that Hirsch's refusal was unreasonable. It concluded that a prudent individual would accept a temporary health risk to mitigate a continuous safety hazard and could have avoided the risk by vacating the premises during repairs. Consequently, the court granted the petitioner a judgment of possession.

holdover proceedingunreasonable refusalaccess for repairshousing code violationlandlord-tenantallergic reactionglue fumesobjective standardjudgment of possessiontenant rights
References
9
Case No. MISSING
Regular Panel Decision

Claim of Wilkins v. New York Power Authority

The claimant, a lineman, sustained a shoulder injury in July 2007. Despite a diagnosis of biceps tendonitis and adhesive capsulitis, he declined prescribed medication and discontinued physical therapy, not missing work. He subsequently applied for workers’ compensation benefits based on a 45% schedule loss of use. A Workers’ Compensation Law Judge initially denied benefits, citing the claimant's unreasonable refusal of treatment. The Workers’ Compensation Board reversed, finding the refusal reasonable. However, the appellate court reversed the Board's decision, concluding that the Board’s determination was not supported by substantial evidence given the unanimous medical opinion that treatment was needed and claimant's refusal was unreasonable, remitting the matter for further proceedings.

Shoulder InjuryBiceps TendonitisAdhesive CapsulitisSchedule Loss of UseRefusal of Medical TreatmentUnreasonable RefusalWorkers' Compensation BenefitsMedical OpinionSubstantial EvidenceAppellate Review
References
3
Case No. ADJ1226686 (WCK 60788)
Regular
Oct 29, 2008

CATHY BAKER vs. JAMES H. KHOE, D.D.S., ZENITH INSURANCE COMPANY

The Workers' Compensation Appeals Board corrected a clerical error in a prior decision, specifically changing a finding from "Defendant did unreasonably delay or refuse medical treatment" to "Defendant did *not* unreasonably delay or refuse medical treatment." This correction was made after the defendant alerted the Board to the mistake, and the Board exercised its authority to correct clerical errors at any time. Consequently, the defendant's petition for reconsideration was dismissed as moot.

WORKERS' COMPENSATION APPEALS BOARDCLERICAL ERRORPETITION FOR RECONSIDERATIONLABOR CODE § 5814MEDICAL TREATMENTDELAYREFUSALDECISION AFTER RECONSIDERATIONCORRECTINGDISMISSAL
References
1
Case No. MISSING
Regular Panel Decision

People v. Rodriguez

The defendant, indicted for resisting arrest and DWI, filed a motion to prevent the District Attorney from using evidence of his refusal to take a chemical test at trial. The defendant argued that admitting such evidence violates his Fifth Amendment rights against self-incrimination, despite a 1973 amendment to Vehicle and Traffic Law § 1194 that permitted it. The court analyzed precedents, distinguishing between the non-testimonial nature of the test itself and the communicative nature of a refusal. It concluded that a refusal constitutes a communication, thus falling under Fifth Amendment protection. Consequently, the court granted the defendant's motion, ruling that such evidence is inadmissible.

Fifth AmendmentSelf-incriminationChemical Test RefusalDWIAdmissibility of EvidenceConstitutional RightsTestimonial EvidenceImplied Consent LawPreclusion MotionCriminal Procedure
References
19
Case No. MISSING
Regular Panel Decision

Claim of Reitzen v. Brooklyn Carpet Exchange

The case involves an appeal from decisions of the Workers’ Compensation Board concerning a claimant who sustained a permanent partial disability from a back injury. Despite unanimous medical recommendation for a myelogram and potential surgery, the claimant refused treatment. The Board found his refusal reasonable due to 'subjective fear with a severe psychiatric overlay.' The employer and its insurance carrier appealed, arguing the refusal was unreasonable. The appellate court affirmed the Board's decision, citing substantial evidence that the claimant's rejection of treatment was based on more than groundless fear.

Permanent Partial DisabilityBack InjuryMedical Treatment RefusalMyelogramSurgeryPsychiatric OverlayReasonable RefusalAppellate ReviewEmployer LiabilityInsurance Carrier Liability
References
2
Case No. ADJ7365717
Regular
Oct 18, 2012

JAMES VAN DELL (Deceased), LORILENE VAN DELL (Dependent) vs. COUNTY OF LOS ANGELES

This case involves a widow's claim for death benefits after her firefighter husband died from prostate cancer. The defendant, County of Los Angeles, unreasonably delayed payment by requesting tax returns that were partially blacked out by the IRS, despite the widow's attorney providing explanations and other evidence of dependency. The Appeals Board rescinded the prior order finding no unreasonable delay, determined that a penalty is warranted due to the defendant's unreasonable refusal to provide benefits. The matter is returned to the WCJ to determine the amount of the penalty based on established legal factors.

Workers Compensation Appeals BoardDeath BenefitsPenaltiesLabor Code Section 3501Labor Code Section 5814DependencyTotal DependentPartial DependentUnreasonable DelayReconsideration
References
2
Case No. MISSING
Regular Panel Decision

Claim of Messina v. Speranza

The case involves an appeal regarding a claimant's refusal to undergo further back surgery after an initial unsuccessful operation for a herniated disc, leading to permanent disability. The Administrative Law Judge initially discontinued benefits, but the Workers’ Compensation Board reversed, finding the refusal reasonable based on medical testimony detailing the risks and lack of guarantee of success. The Appellate Division affirmed the Board's decision, concluding that substantial evidence supported the finding that the claimant's refusal was not unreasonable, considering his prior surgical experiences and the potential for worsened condition or paralysis.

Back InjuryHerniated DiscRefusal of SurgeryReasonableness of RefusalPermanent DisabilityMedical OpinionAppellate ReviewWorkers' Compensation BoardSubstantial EvidenceSurgical Complications
References
3
Case No. ADJ6678537
Regular
Oct 07, 2011

DOTTIE BRANDON-LEGGET vs. SECURITAS SECURITY SERVICES, INC.

This case involves a security guard's claim for industrial injury to her shoulder and knee. The Workers' Compensation Appeals Board (WCAB) granted reconsideration, affirming the findings of industrial injury and temporary total disability. However, the WCAB reversed the administrative law judge's (ALJ) penalty award under Labor Code §5814, finding that the defendant's delay in paying temporary disability was not unreasonable due to genuine doubt about its liability. The WCAB emphasized that a penalty under §5814 requires unreasonable delay or refusal, and here, the defendant's doubts were not unreasonable given the applicant's delayed treatment and lack of contemporaneous complaints.

Labor Code § 5814Unreasonable DelayTemporary Total DisabilityIndustrial InjuryRight ShoulderRight KneeReconsiderationWCJ FindingsGenuine DoubtMedical Treatment
References
13
Case No. ADJ3905674 (SRO 0031254)
Regular
Feb 02, 2011

DAVID PELLETIER vs. UNITED STRUCTURES, INC., CIGA by its Servicing Facility CAMBRIDGE on behalf of FREMONT COMPENSATION, in liquidation

The Workers' Compensation Appeals Board denied reconsideration of its decision regarding attorney's fees. The applicant's attorney sought fees under Labor Code sections 4607 and 5814.5, arguing the defendant unreasonably failed to appoint a new case manager and pay prior bills. The Board affirmed the judge's finding that Labor Code § 4607 fees are inapplicable when the entire award is not terminated, and Labor Code § 5814.5 fees require an existing award and unreasonable refusal to pay. The Board found no evidence of unreasonable delay by the defendant in appointing a new case manager, thus denying the petition.

Workers' Compensation Appeals BoardReconsiderationAttorney's FeesLabor Code Section 4607Labor Code Section 5814.5Medical TreatmentCompromise and ReleasePetition for PenaltyNurse Case ManagerStipulations
References
2
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