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

Case No. 2016 NY Slip Op 08300 [145 AD3d 492]
Regular Panel Decision
Dec 08, 2016

Netzahuall v. All Will LLC

This case concerns an appeal regarding the denial of defendant Lime Light's cross-motion to dismiss common-law indemnification claims brought by defendant All Will LLC. The plaintiff, Gabriel Netzahuall, an employee of Lime Light, sustained injuries but not a "grave injury" as defined by Workers' Compensation Law § 11. Although the Workers' Compensation Board previously determined Lime Light to be the plaintiff's employer, the Appellate Division affirmed the lower court's finding that All Will, the premises owner, was not collaterally estopped from challenging this determination. The court reasoned that All Will was not a party to the prior Workers' Compensation proceeding and therefore did not have a full and fair opportunity to litigate the issue of plaintiff's employer.

indemnificationcollateral estoppelWorkers' Compensation Lawemployer-employee relationshipgrave injurypremises liabilityappellate practicestatutory interpretationprivity of partieslitigation opportunity
References
4
Case No. 2017 NY Slip Op 07023 [154 AD3d 1037]
Regular Panel Decision
Oct 05, 2017

Matter of Passero v. Uninsured Employers' Fund

The claimant, Edmund Passero, a bricklayer, filed a workers' compensation claim in 2011 for an occupational disease resulting from repetitive stress. A Workers' Compensation Law Judge (WCLJ) initially established the claim against DeSpirit Mosaic & Marble Co. and later apportioned liability among three employers, including J. William Pustelak Inc., found to be uninsured. The Uninsured Employers' Fund (UEF) sought administrative review, but the Workers' Compensation Board denied the appeal as untimely. The Appellate Division, Third Department, reversed the Board's finding on the timeliness of UEF's application, holding that UEF would not have incurred an obligation until the WCLJ's December 2014 decision which apportioned liability. The case was remitted to the Workers' Compensation Board to consider the merits of UEF's appeal.

Workers' CompensationOccupational DiseaseUntimely AppealAdministrative ReviewLiability ApportionmentUninsured EmployerDate of DisablementThird DepartmentAppellate DivisionClaimant Benefits
References
5
Case No. SAC 293290
Regular
Feb 21, 2008

WILLIAM MENDOZA vs. LEE CUNEO dba THE BODY SHOP, UNINSURED EMPLOYERS FUND

The Workers' Compensation Appeals Board granted reconsideration to address the Uninsured Employers Benefits Trust Fund's (UEBTF) contentions. While affirming the award of retroactive vocational rehabilitation maintenance allowance (VRMA) at the delay rate, the Board amended the original order to allow the UEBTF credit for wages earned by the applicant as a property manager and for his net recovery in a third-party civil action against the uninsured employer. This credit will reduce the UEBTF's liability for the VRMA.

UEBTFVRMAdelay ratecredit for wagescivil action recoveryLabor Code section 139.5Labor Code section 4909property manager earningsthird party actionnet recovery
References
1
Case No. LAO 0784069
Regular
Feb 11, 2008

RICARDO LOPEZ vs. HYON SEOP KIM, Individually and dba H.B. CONSTRUCTION, AARON SONG, an Individual, Illegally Uninsured, THE DIRECTOR OF INDUSTRIAL RELATIONS, As Administrator of THE UNINSURED EMPLOYERS BENEFITS TRUST FUND

The Uninsured Employers Benefits Trust Fund (UEBTF) was not liable for a penalty on an attorney's fee award due to unreasonable delay. However, Labor Code section 3716.2 obligates the UEBTF to seek such penalties in civil enforcement actions against uninsured employers. Therefore, the Appeals Board amended the award to clarify that while UEBTF is not directly liable for the penalty, it remains part of the underlying award that UEBTF must pursue from the uninsured employers.

Uninsured Employers Benefits Trust FundUEBTFAttorney's fee awardLabor Code section 5814Labor Code section 3716.2Civil suitReconsiderationFindings and AwardWCJPenalty
References
1
Case No. MISSING
Regular Panel Decision
Sep 19, 2013

In Re the Estate of Cameron

This case involves an appeal from an order of the Surrogate’s Court of Tioga County concerning the probate of William G. Cameron's will. The decedent, while hospitalized, executed a will leaving his estate to his wife, the petitioner. One of his sons, the respondent, filed objections, alleging the will was not duly executed, decedent lacked testamentary capacity, and the will was procured by fraud and undue influence. The Surrogate’s Court granted summary judgment to the petitioner, dismissing the objections and admitting the will to probate. The appellate court affirmed the decision, finding that the petitioner established a prima facie case for probate and the respondent failed to raise a material issue of fact regarding due execution, testamentary capacity, fraud, or undue influence.

Will ProbateTestamentary CapacityUndue InfluenceFraudSummary JudgmentAppealSurrogate's CourtAttesting WitnessesDue ExecutionDecedent's Estate
References
13
Case No. ADJ723750 (LAO 0809604)
Regular
Oct 17, 2008

SHEMEL BABAKHANI vs. ELINA NAZARIAN dba JAY AUTO REPAIR; WILLFULLY UNINSURED

This case involves an applicant's appeal regarding permanent disability and a typographical error, alongside the Uninsured Employers Benefits Fund's (UEF) appeal challenging the admission of an expert's report and the disability rating. The Appeals Board granted the applicant's reconsideration to correct a clerical error in the permanent and stationary date, otherwise affirming the original decision. The UEF's petition for reconsideration was denied, with the Board adopting the WCJ's reasoning.

Workers' Compensation Appeals BoardUninsured Employers Benefits Trust Fundindustrial injuryright eye injurypsyche injuryauto mechanictemporary disability benefitspermanent disability ratingpermanent and stationary daterating expert
References
0
Case No. ADJ4646082 (OAK 0341803)
Regular
Jul 22, 2016

WILLIAM MATEO vs. B&C TRANSIT CONSULTANTS, INC.

The Workers' Compensation Appeals Board granted reconsideration to increase the applicant's award by 10% under Labor Code section 4554 due to the employer's willful failure to secure workers' compensation insurance. The Board found that the employer failed to meet its burden of proving its uninsured status was not willful, despite stipulations of uninsured status. The applicant's attorney's fees were also increased to include 15% of the penalty award.

Labor Code section 4554Willful failure to secure compensationPrima facie evidence of willfulnessIncreased compensationUninsured employers fundPetition for reconsiderationFindings of Fact and AwardDecision after reconsiderationTemporary disability indemnityPermanent disability indemnity
References
0
Case No. MISSING
Regular Panel Decision

Claim of Shutter v. Philips Display Components Co.

The claimant, injured in a work-related single-car accident, received workers' compensation benefits and also pursued an uninsured motorist claim, recovering $124,697.95. The Workers' Compensation Board ruled that the employer's insurance carrier was entitled to offset this recovery against future compensation benefits, overturning a prior WCLJ decision. The claimant appealed, arguing that Workers' Compensation Law § 29's offset provisions apply only to third-party tortfeasor actions, not uninsured motorist proceeds. The court rejected this argument, finding the statute's general terminology encompasses uninsured motorist benefits and that legislative intent for exclusion only exists for no-fault benefits, not uninsured motorist benefits under Insurance Law § 3420 (f). Consequently, the Board's decision was affirmed.

Uninsured motoristWorkers' Compensation LawOffsetInsurance carrierThird-party tortfeasorLien provisionsStatutory interpretationLegislative intentNo-fault insuranceCompensation benefits
References
3
Case No. MISSING
Regular Panel Decision

In re the Arbitration between Williams

Amoco Oil appealed two judgments from the Supreme Court, Nassau County, concerning arbitration for uninsured motorist and no-fault benefits. The first judgment, dated January 6, 1977, granted New Hampshire Insurance Company's application to stay arbitration, deeming Amoco Oil's coverage primary and New Hampshire's secondary for uninsured motorist benefits. The second judgment, dated March 30, 1977, permanently stayed arbitration for no-fault benefits under New Hampshire's policy. The Appellate Division affirmed both judgments, concluding that the claimant was "occupying" the Amoco Oil vehicle, making Amoco Oil primarily liable for uninsured motorist benefits. However, the claimant was precluded from receiving these benefits due to already receiving workers' compensation benefits in excess of the maximum, and was also ineligible for no-fault benefits under the New Hampshire policy.

Insurance DisputeArbitration ProceedingsUninsured Motorist CoverageNo-Fault InsuranceWorkers' CompensationPrimary vs Secondary LiabilityAppellate DivisionNassau County Supreme CourtVehicle OccupancyBenefit Eligibility
References
3
Case No. MISSING
Regular Panel Decision

Hayes v. Hayes

This case concerns an appeal from the Family Court of Saratoga County's dismissal of a petitioner's application to hold the respondent in willful violation of a child support order. The respondent, who had accumulated significant arrears and made no payments since September 1999, claimed disability due to an automobile accident but failed to provide sufficient medical evidence to support his inability to pay. The Hearing Examiner erred by finding no willful violation and by sua sponte reducing the respondent's child support obligation without a cross-petition or adequate proof of changed circumstances. The Appellate Division reversed the lower court's order, granted the petitioner's application, and remitted the matter for further proceedings, concluding that a willful violation was warranted and the downward modification was improper.

Child SupportWillful ViolationSupport ArrearsDisability ClaimMedical EvidenceDownward ModificationFamily CourtAppellate ReviewBurden of ProofNonpayment
References
4
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