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Case Summaries

Injury & Tort Law

[08/29] Rosenberg v. DVI Receivables XVII LLC
In an appeal presenting a question of federal preemption law, in which defendants filed involuntary bankruptcy petitions against plaintiff's husband that were later dismissed by the Bankruptcy Court, the District Court's dismissal of this complaint for tortious interference under state law for damages allegedly caused by the filing of the involuntary petitions, is reversed where 11 U.S.C. section 303(i) does not preempt the state law claims of non-debtors predicated on the filing of an involuntary bankruptcy petition.

[08/29] Vasquez v. Empress Ambulance Serv., Inc.
In a suit brought by an emergency medical technician who was subjected to unwanted sexual overtures by another employee while on the job, the District Court's dismissal the case, holding that the retaliatory intent of plaintiff's co-worker, a low-level employee, could not be imputed to employer and that employer consequently could not have engaged in retaliation, is vacated where agency principles permit the retaliatory intent of employer's co-worker to be imputed, as a result of defendant's alleged negligence, to defendant.

[08/26] Dugard v. US
In an injury and tort action brought by plaintiff Jaycee Dugard, who was abducted and kept captive in a shed by parolee Phillip Garrido for eighteen years while being repeatedly raped and drugged by him, the district court's judgment in favor of defendant is affirmed where the Federal Tort Claims Act does not permit plaintiff to recover against the federal government for the incompetence of the parole office that was supposed to supervise Garrido's release.

[08/26] Fenske v. Service Employees Int'l, Inc.
In a petition for review challenging a Benefits Review Board determination that petitioner could not receive concurrent payments for two disabilities under the Longshore and Harbor Workers' Compensation Act, the petition is denied where concurrent payments for total disability and scheduled permanent partial disability are unavailable and petitioner's case does not meet the exception provided for by Stevedoring Serv. Of Am. v. Price, 382 F.3d 878 (9th Cir. 2004).

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Workers' Comp

[08/17] Kerrigan v. MSPB
In an appeal of a final decision of the Merit Systems Protection Board dismissing, for lack of jurisdiction, his claim that his workers' compensation benefits were improperly terminated in retaliation for protected whistleblowing activity, the Board's decision is affirmed where, although the Board incorrectly held that 5 U.S.C. section 8128(b) bars its review of petitioner's appeal, petitioner failed to make a nonfrivolous allegation that his protected disclosure was a contributing factor in the agency's action.

[06/22] State Compensation Insurance Fund v. WCAB
In an action seeking review of a decision of the Workers' Compensation Appeals Board regarding the medical necessity of proposed treatment requested by an employee of the California Highway Patrol (CHP), involving Labor Code Section 4610.6, which created a new procedure--independent medical review (IMR)--that an injured worker may use to challenge an employer's timely denial, delay or modification of a request for authorization of proposed medical treatment, the Board's decision is reversed where the 30-day time limit in section 4610.6(d), is directory and, accordingly, an untimely IMR determination is valid and binding upon the parties as the final determination of the director.

[05/11] SSA Terminals and Homeport Ins. Co. v. Carrion
In an action brought by a claimant seeking disability benefits under the Longshore and Harbor Workers' Compensation Act, an employer/insurer's petition for review of a decision by the Benefits Review Board is denied where: 1) the claimant timely filed his claim against his employer; 2) claimant's knee injury was a permanent, rather than a temporary, disability; and 3) the doctrines of exhaustion and waiver were inapplicable because claimant presented his claim of permanent disability well before the conclusion of the administrative process and neither the employer nor the agency was blindsided by the argument.

[05/02] Matthews v. Liberty Assignment Corp.
In a case dealing with the issue of whether a judgment, based on a structured settlement of an employee's workers' compensation claims against his employer and others, which was agreed upon by the parties and entered as an award in the workers' compensation proceeding, may be assigned by the injured employee, the trial court's denial of a motion for an order approving the assignment of plaintiff's structured settlement payment judgement is affirmed where the assignment was prohibited by statute.

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