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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

Covino v. Hagemann

The plaintiff, Lee Covino, sued defendant Ray E. Hagemann for defamation (libel and slander) after Hagemann sent a note to Covino, copied to Borough President Guy Molinari, accusing Covino of 'racially insensitive attitudes' towards Ed Watkins. Hagemann also allegedly repeated these statements to newspaper employees. The court considered whether the statements were actionable facts or protected opinions. Applying the three-prong test from Gross v New York Times Co., the court found terms like 'racially insensitive' to be vague, ambiguous opinions incapable of being proven true or false, and not implying undisclosed defamatory facts. The court also rejected claims that the statements constituted a crime or harmed Covino in his profession, stating they were nonactionable rhetorical hyperbole. Consequently, the motion to dismiss the complaint for failure to state a cause of action was granted, and the complaint was dismissed, with attorneys' fees denied.

DefamationLibelSlanderFreedom of SpeechOpinion vs FactCPLR 3211(a)(7)Motion to DismissRacially InsensitivePublic OfficialsEmployment Dispute
References
39
Case No. MISSING
Regular Panel Decision
May 17, 2016

United States v. Nesbeth

Chevelle Nesbeth was convicted by a jury for importation of cocaine and possession with intent to distribute. Senior District Judge Block rendered a non-incarceratory sentence of one-year probation, with special conditions including six months' home confinement and 100 hours of community service. The judge wrote this opinion to emphasize the importance of considering the numerous statutory and regulatory collateral consequences facing Nesbeth as a convicted felon, such as restrictions on employment, housing, and voting. These consequences were extensively balanced against 18 U.S.C. § 3553(a) factors to determine a just punishment. The opinion advocates for legal counsel and the Probation Department to proactively address collateral consequences in all future pre-sentence reports and sentencing proceedings.

Collateral ConsequencesSentencing ReformCriminal JusticeProbationary SentenceDrug Trafficking OffensesFelony ConvictionJudicial DiscretionFederal Sentencing GuidelinesRehabilitationRecidivism
References
55
Case No. MISSING
Regular Panel Decision

Pizzo v. Barnhart

Plaintiff Kathleen Pizzo appealed the Commissioner of the Social Security Administration's final determination denying her disability insurance benefits. The District Court reviewed the ALJ's decision, which had assigned no weight to the treating physician's opinion and significant weight to a consulting physician's report. The court found that the ALJ erred by failing to give appropriate weight to the treating physician's opinion, not adequately developing the administrative record to obtain missing medical notes, and giving undue weight to the consulting physician's report which did not explicitly support the capacity for sedentary work. Consequently, the Commissioner's determination was remanded for further administrative proceedings consistent with the District Court's decision, granting the plaintiff's motion for judgment on the pleadings to the extent of the remand and denying the Commissioner's cross-motion.

Social Security ActDisability Insurance BenefitsAdministrative Law JudgeTreating Physician RuleResidual Functional CapacitySedentary WorkMedical EvidenceRemandSubstantial EvidenceRecord Development
References
23
Case No. ADJ10075517
Regular
Dec 15, 2017

PAUL ROYCE vs. STATE OF CALIFORNIA, Legally Uninsured

The WCAB granted reconsideration of a decision denying a workers' compensation claim for respiratory issues. While the sole medical expert found the aspergillosis to be industrial, the judge deemed the opinion lacking substantial evidence due to vagueness. The Board found it unjust to penalize the applicant with a "take nothing" order when the opinion, though flawed, was unrebutted. Therefore, the case is remanded for further medical development, potentially with an expert more specialized in aspergillosis, to ensure substantial justice and a complete record.

Workers' Compensation Appeals BoardPetition for ReconsiderationIndustrial InjuryAspergillosisChronic Obstructive Pulmonary DiseaseMedical EvidenceIndustrial CausationFurther Development of RecordAgreed Medical EvaluatorLabor Code Section 5701
References
5
Case No. MISSING
Regular Panel Decision

Formal Opinion No.

This opinion from the Chairman of the New York Workers' Compensation Board addresses the priority of income execution and income deduction orders, established by the 1985 Support Enforcement Act (CPLR §§ 5241, 5242), against other statutory deductions from workers' compensation awards. Historically, WCL § 33 provided broad exemptions for workers' compensation benefits. However, WCL §§ 206(2) and 25(4)(a) allow for reimbursement of disability insurers and employers for advance payments, respectively, and WCL § 24 establishes liens for attorneys' fees, traditionally enjoying highest priority. The 1985 Act amended WCL § 33 to make benefits subject to support enforcement and also stipulated that income executions and deduction orders take priority over other assignments, levies, or processes. The Board concluded that claims for attorneys' fees and reimbursements by disability insurance carriers and employers are to be deducted first from the workers' compensation award. The support enforcement remedies under CPLR §§ 5241 and 5242 then apply to the balance of the workers' compensation benefits paid to the employee. This approach ensures prompt payment to injured workers and prevents double payment issues.

Workers' CompensationSupport Enforcement ActIncome ExecutionIncome DeductionLien PriorityStatutory InterpretationDisability Benefits ReimbursementEmployer ReimbursementAttorneys' Fees PriorityCPLR 5241
References
9
Case No. ADJ8700541
Regular
Oct 17, 2019

ZAHRA STEPHENS vs. COX ENTERPRISES, INC.

The Appeals Board granted reconsideration to review the WCJ's finding of permanent and total disability based on the opinions of a psychologist, Dr. Windman, and a vocational expert, Mr. Wilkinson. The Board found that Dr. Windman's opinion lacked substantial evidence due to inconsistencies, inadequate record review, and conflicts with other medical opinions. Consequently, Mr. Wilkinson's vocational opinion, which relied heavily on Dr. Windman's findings, was also deemed not substantial evidence. The case is remanded to the trial level for further proceedings and a new determination of permanent disability.

Workers' Compensation Appeals BoardReconsiderationPermanent Total DisabilityMedical OpinionVocational ExpertSubstantial EvidencePQMENeurologistPsychologistOrthopedist
References
10
Case No. ADJ1142998 (RDG 0118288)
Regular
Aug 18, 2009

STEVE REYNOLDS vs. WYCKOFF LOGGING, STATE COMPENSATION INSURANCE FUND

This case concerns a defendant's petition for reconsideration of a prior Workers' Compensation Appeals Board (WCAB) decision. The WCAB had previously rescinded a finding that avascular necrosis was not a compensable consequence of the applicant's injury, finding the relied-upon medical opinion speculative. The defendant argues the WCJ correctly favored the opinion of Dr. Glancz over Dr. Barber. The WCAB denied reconsideration, reaffirming that Dr. Glancz's opinion was not substantial evidence due to repeated questioning of the injury mechanism, while Dr. Barber's opinion was persuasive and based on a complete history. Therefore, the WCAB maintained its prior decision that Dr. Barber's opinion constituted substantial evidence supporting the applicant's claim.

Avascular necrosiscompensable consequencesubstantial evidencemedical opinionworkers' compensation administrative law judgereconsiderationfindings and ordermedical treatmentindustrial basissubstantial evidence
References
1
Case No. ADJ7172643; ADJ7172641
Regular
Apr 02, 2012

JUSTIN MILLER vs. PF CHANGS CHINA BISTRO, GALLAGHER BASSETT SERVICES, INC.

This case involves an applicant whose workers' compensation claims were dismissed by the WCJ for lack of activity and prosecution. The applicant sought reconsideration, arguing due process violations and non-compliance with dismissal procedures. The Appeals Board denied the petition, finding the applicant's objections vague and lacking specific reasons for the lack of prosecution despite ample opportunity. A dissenting opinion argued that the dismissal constituted an abuse of discretion as the applicant had indicated an intention to prosecute the claim.

WORKERS' COMPENSATION APPEALS BOARDPetition for ReconsiderationJoint Order Dismissing Applicationswithout prejudicePetition for Dismissallack of activity and prosecutionNotice of Intent to Dismiss Applicationsobjections overruleddue process rights violatedCalifornia Code of Regulations title 8 section 10582
References
0
Case No. MISSING
Regular Panel Decision

New York State National Organization for Women v. Pataki

This opinion addresses several motions following appeals in a class-action lawsuit challenging practices of the New York State Division of Human Rights. Plaintiffs' motion for curative notice relief is denied, as the Second Circuit had previously deemed similar requests without merit. Defendants' cross-motion to dismiss the entire action is denied because the permanent injunction against the 1995 Intake Rules, which were never appealed, remains in effect. Class member Abby Oshinsky's motion for reinstatement of her discrimination claims is denied, as the remaining aspect of the case does not provide a vehicle for her claims, making NYCHA's motion to intervene moot.

Due ProcessClass ActionPermanent InjunctionAdministrative PracticesProcedural DelaysNotice DeficienciesHuman Rights1995 Intake RulesSecond CircuitSupreme Court Review
References
6
Case No. MISSING
Regular Panel Decision

Raniere v. Citigroup Inc.

This opinion grants final approval of a class action settlement in a wage dispute case. Plaintiffs, led by Tara Raniere, alleged that Defendants Citigroup, Inc., Citibank, N.A., and CitiMortgage, Inc. deprived them of overtime pay in violation of the Fair Labor Standards Act and New York Labor Law. The parties reached a settlement in principle for a maximum amount of $4,650,000, to be distributed among the class members, class counsel for fees and expenses, named plaintiffs for service awards, and a settlement administrator. The court also certified the settlement class and approved the requested attorney's fees for Wigdor LLP and reimbursement of litigation expenses.

OvertimeWage DisputeFLSANYLLClass ActionSettlement ApprovalAttorney's FeesIncentive AwardsCitigroupHome Lending Specialist
References
27
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