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Benjamin K. Durstein

Portrait of Benjamin K. Durstein

As a member of the Workers' Compensation Department, Ben represents employers, insurance carriers and third-party administrators in defense of workers' compensation claims before the Industrial Accident Board and Delaware courts.

Ben earned his Bachelor of Arts degree from the University of Delaware in 2007, and went on to receive his juris doctor from Widener University School of Law in 2012.  After law school, he served as a judicial law clerk to the Honorable James T. Vaughn, Jr., who was then President Judge of the Delaware Superior Court.

Ben is a member of Delaware Claims Association, Delaware State Bar Association Workers’ Compensation Section and the Randy J. Holland Delaware Workers’ Compensation American Inn of Court.  He is admitted to practice in the State of Delaware.

    • Widener University Delaware Law School (J.D., cum laude, 2012)
    • University of Delaware (B.A., 2007)
    • Delaware, 2013
    • The Best Lawyers: Ones to Watch©, Workers’ Compensation Law – Employers (2024-2025, 2027)
    • Top Lawyer, Workers' Compensation Employer Defense, Delaware Today Magazine (November 2022)
    • Delaware Claims Association
    • Delaware State Bar Association; member, Workers' Compensation Section
    • Randy J. Holland Delaware Workers’ Compensation American Inn of Court
    • Ethics and the Duty to the Tribunal and Opposing Counsel, panelist, Delaware State Bar Association and the Industrial Accident Board Workers' Compensation Seminar 2023, Wilmington, Delaware, May 2, 2023
    • Strategies to Limit Exposure and Minimize Risk, Marshall Dennehey Workers' Compensation Seminar, October 27, 2022
    • Do’s and Don’ts in the Practice of Workers Compensation, Delaware State Bar Association William D. Rimmer Workers’ Compensation Seminar 2022, Wilmington, Delaware, May 3, 2022
    • Are You Coming or Going – Do You Know Your Course and Scope?, Marshall Dennehey webinar, October 26, 2020

Results

Petition to Terminate Ongoing Receipt of TPD Benefits Granted on Basis that Claimant Voluntarily Removed Himself from the Workforce

The Industrial Accident Board (IAB) granted our petition to terminate the ongoing receipt of temporary partial disability (TPD) benefits on the basis that the claimant had voluntarily removed himself from the workforce. The claimant was a correction officer who suffered head injuries in an altercation with an inmate. He was out of work for a time and eventually released to return to work on modified duty. His restrictions were permanent and, because they could not be accommodated by his employer, he was placed on TPD. After more than a year with no indication of an attempt to return to the workforce, we challenged his ongoing entitlement to receive TPD. We worked with the employer to obtain documentation regarding the claimant’s job search (or lack thereof), other sources of income (pension, Social Security) and recreational/social activities since he had been separated from employment. In addition, we put forward both medical and vocational expert testimony at the hearing. As a result, the IAB reasoned that the claimant was able to work in a medium-duty job, that jobs were available within his restrictions, the he had conducted a minimal job search since his work release more than a year and a half earlier, and that his description of his daily activities was consistent with a person content with a retirement lifestyle rather than someone who intended to continue to work. Accordingly, he was no longer entitled to wage replacement benefits.

Petition to Terminate Temporary Partial Disability Benefits Granted

We were successful in having our petition to terminate the ongoing receipt of temporary partial disability benefits granted on the basis that the claimant had voluntarily removed himself from the workforce. The Industrial Accident Board reasoned that the claimant was able to work in a medium-duty job, that jobs were available within his restrictions, the he had conducted a minimal job search since his work release more than a year and a half earlier, and that his description of his daily activities was consistent with a person content with a retirement lifestyle rather than someone who intended to continue to work. Accordingly, he was no longer entitled to wage replacement benefits.

Thought Leadership

What's Hot in Workers' Comp

Industrial Accident Board Denies EMT’s Motion to Amend Injury Date, Citing Statute of Limitations and Inexcusable Neglect

July 1, 2025

The Industrial Accident Board dismissed a workers’ compensation claim after determining that the claimant’s attempt to amend the alleged date of injury was both untimely and the result of inexcusable neglect. The claimant initially reported an injury occurring on May 26, 2023, but later acknowledged—well after the two-year statute of limitations had expired—that the incident had actually taken place in March 2023. Arguing that amendment should “relate back” to his original petition, the claimant sought to preserve the claim despite the revised date. However, the Board applied Superior Court Rule 15(c) and found that the amendment failed to arise from the same occurrence and that the delay in correcting the date was unjustifiable. As a result, the motion to amend was denied, and the petition was dismissed as time-barred. The claimant worked as an EMT for the employer. On August 21, 2023, he reported that a few months earlier, on May 26, 2023, he had injured his low back while moving a patient in a stretcher. The claim was denied by the employer due to the late reporting of the event and because there was no evidence to support that a work accident occurred on that day. On December 1, 2024, the claimant filed a Petition to Determine Compensation Due that sought acknowledgment of injuries sustained at work on May 26, 2023. On February 23, 2025, the employer inquired as to whether the correct date of loss was asserted because medical records reflected a similar incident on March 20, 2023. On April 8, 2025, the claimant responded that, upon review of his text messages, the accident at work had actually occurred in March 2023, not May 26, 2023. Upon request, the claimant produced screenshots of the text messages and represented to the employer that the correct accident date was actually March 20, 2023, or March 21, 2023—the claimant worked a night shift from the 20th to the 21st. The employer objected to an amendment of the date of loss, now more than two years after the alleged accident. The claimant filed a motion to amend the petition and contended that the amendment should “relate back” to the original filing date of December 13, 2024, which was within the two-year statute of limitations.  The Board determined that the best way to analyze the issue of “relation back” was to apply Superior Court Rule 15(c) because the Workers’ Compensation Act, Administrative Procedure Act and the Board Rules do not contain such a provision. To relate back, Rule 15(c) requires that the amendment “arise out of the conduct, transaction or occurrence set forth in the original pleading.” Additionally, Delaware courts will reject motions to amend when the moving party has shown inexcusable neglect. The Board concluded that the claimant’s proposed amendment failed on both fronts: (1) it did not arise out of the same occurrence as the original pleading and (2) his conduct constituted inexcusable neglect. The Board reasoned that the proposed change of the date of injury by more than two months was not a trivial amendment of a few days or a week. The revised claim occurred on a completely different day and time. Moreover, the Board emphasized that the claimant’s delay in reporting and subsequent failure to correct the date until after the statute of limitations had elapsed resulted in prejudice to the employer and constituted inexcusable neglect. Lastly, the Board held that no provision of the savings statute applied to grant the claimant an additional year to make a timely filing of the petition. The claimant’s motion to amend was denied, and the pending petition was dismissed.    What’s Hot in Workers’ Comp, Vol. 29, No. 7, July 2025, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

What's Hot in Workers' Comp

Petition to terminate total disability benefits for claimant who had light-duty restrictions that could not be accommodated denied; claimant had reasonable expectation of returning to pre-injury job with same employer when his condition improved.

February 1, 2025

On November 4, 2023, the claimant injured his left knee in a compensable work accident that required surgery to his patella. He had to switch doctors after his first treating surgeon passed away. On March 26, 2024, the claimant was released to return to light-duty work, but with no use of the stairs. He briefly returned to work, but the employer was not able to accommodate those restrictions because his job required using steps connecting multiple levels of the plant.  The claimant was issued a note on June 17, 2024, that removed the stairs restriction. He briefly returned to a modified-duty position with those restrictions, but a few days later, he was taken back out of work with a more restrictive, light-duty note.  On August 5, 2024, the employer filed a petition to terminate total disability benefits on the basis that the claimant was capable of returning to work and there were jobs within his restrictions available.  The parties stipulated that the claimant continued with light-duty restrictions and that jobs identified within a labor market survey were available and within those restrictions. Therefore, the sole issue to determine entitlement to temporary total disability benefits was whether the claimant qualified as a “Hoey displaced worker.” The legal standard was whether the claimant had a reasonable expectation of returning to work for the employer.  The Industrial Accident Board concluded he did and confirmed the claimant was informed he would not be able to return to work without a lifting of his restrictions. However, he was also told to keep the employer updated about his medical appointments and any changes in restrictions. He was never separated from employment or told to look for employment elsewhere.  The claimant’s testimony, that he expected to improve with physical therapy and return to his pre-injury job, was found to be credible by the Board. The termination petition was denied.    What’s Hot in Workers’ Comp, Vol. 29, No. 2, February 2025 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

Two Tracks, No Preclusion: Ohio Supreme Court Preserves Separate Damages Claims After Chapter 2506 Appeals

The Supreme Court of Ohio has clarified that an administrative appeal under Ohio Revised Code Chapter 2506 does not bar a separate action for damages and declaratory relief that could not have been pursued in the administrative appeal. The Ohio Supreme Court considered Sheetz, Inc. v. Centerville (2026-Ohio-3531) as a result of a certified question from the Southern District of Ohio. The question was whether Sheetz, the gas station/convenience store brand, was barred from seeking damages in a separate action since damages were not sought in their administrative appeal. Ultimately, the Ohio Supreme Court ruled that res judicata does not bar a separate action for damages after ruling on an administrative appeal because R.C. Chapter 2506 is limited to judicial review and cannot grant affirmative relief. The case arose after Centerville’s city council rejected a site plan proposed by Sheetz, Inc. that had received unanimous approval from the City’s planning commission. Sheetz filed an administrative appeal pursuant to R.C. 2506 in the Montgomery County Court of Common Pleas, and two months later filed a complaint for damages and declaratory relief under 42 USC § 1983 as a takings action with the city, city council, and other objectors as improper takings and a violation of due process, as well as interference with business and contractual relationship. The city and city council removed the § 1983 action for damages to federal court. Montgomery County Court of Common Pleas reversed the city council’s denial, and allowed the Sheetz project to move forward. Upon that ruling, the federal court issued a show-cause order questioning whether the § 1983 action was barred by the doctrine of res judicata via claim preclusion (which includes all theories of recovery).  Sheetz argued that Ohio courts of common pleas do not have authority to award damages or declaratory relief as party of the R.C. Ch. 2506 appeal, therefore res judicata could not be triggered to apply to the § 1983 action. Additionally, Sheetz moved to certify the issue to the Ohio Supreme Court, citing differing results between the second and sixth districts on this same issue. Centerville approached the question, not from a claim preclusion standpoint, but from the holding in Grava v. Parkman, Twp which states that a final judgment rendered on the merits bars all subsequent action based on the same transaction or occurrence.  In yet another approach, an objector argued that claim preclusion was satisfied because Sheetz could have raised its damages claims in the administrative appeal – Sheetz disagrees. In their analysis, the Supreme Court of Ohio broke down the elements of a claim preclusion analysis: 1) a prior final, valid decision on the merits by a court of competent jurisdiction; (2) a second action involving the same parties, or their privies, as the first; (3) a second action raising claims that were or could have been litigated in the first action; and (4) a second action arising out of the transaction or occurrence that was the subject matter of the previous action. The Court held that R.C. Ch. 2506 does not permit a party to argue damages as R.C. Ch. 2506 limits the common pleas jurisdiction as if it were sitting on appeal, and therefore can only affirm, reverse, vacate, or modify the appealed order, or can remand the case to the administrative body. Further, the Court held that Grava’s conclusion that a final judgment precludes additional litigation for different relief is inapplicable under this fact pattern because it was meant only to apply to those matters in which the plaintiff brings the exact same case twice, but for new relief. The Court found Grava was inapplicable because Sheetz could have requested damages or declaratory relief in the R.C. 2506 appeal. Therefore, Grava would be nothing more than dicta if it even did apply. Going further, the Ohio Supreme Court disavowed Sixth Circuit precedent which, in reliance on Grava and other district court decisions, permitted an owner to seeking relief under 42 U.S.C. § 1983 alongside an administrative appeal. See Moore v Hiram Twp., 988 F.3d 353 (6th Cir.2021). The Ohio Supreme Court found that the Sixth Circuit had disregarded a critical decision in Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 1993-Ohio-115, which clearly held that a R.C. Ch. 2506 appeal cannot be combined with a complaint seeking other claims for relief. Id. at ¶ 11. To that end, the Ohio Supreme Court has determined that the decisions Moore relied on (outside of Grava) are no longer good law, and that Moore was wrongly decided. The decision draws a clear procedural boundary: Chapter 2506 provides judicial review of an administrative decision, not a forum for independent claims seeking affirmative relief. Although Grava may place claims arising from a single transaction within the potential scope of claim preclusion, those claims are not barred unless the complete claim-preclusion test is satisfied. Because Sheetz could not have pursued damages or declaratory relief in its Chapter 2506 appeal, the separate action was not precluded. The remaining question for practitioners looking to apply or defend against this exception is when does the statute of limitations begin to run on damages and declaratory relief claims related to an administrative decision on appeal? A takings action in federal court has a 2-year statute of limitations, or as a state claim, 4 years (like the other tortious claims raised therein). Correlating this case with others, an administrative appeal will not likely toll the statute of limitations on claims based on a final decision by a municipal authority. Therefore, practitioners should look for these cases to be brought simultaneously.

Thought Leadership

Pennsylvania Supreme Court to Review Whether Legal Malpractice Claims May Be Recast as Breach of Contract Claims

The Pennsylvania Supreme Court recently granted allowance of appeal to consider whether a plaintiff may pursue a breach of contract claim against an attorney based on allegations that the attorney failed to provide competent legal services. The issue is significant in professional liability litigation because it concerns whether a plaintiff may avoid the statute of limitations applicable to professional negligence claims by characterizing the alleged misconduct as a breach of contract. Antoine Poteat retained attorneys Gary Asteak and Nino V. Tinari to represent him in a criminal matter. After his conviction was subsequently overturned through a Post Conviction Relief Act proceeding, Poteat filed suit against his former attorneys alleging that they breached their retainer agreements by failing to provide competent legal services. The attorneys argued that the claims sounded in professional negligence, rather than breach of contract, and were therefore time-barred. The trial court dismissed Poteat’s complaint, but the Superior Court, sitting en banc, reversed. The Superior Court held that the gist-of-the-action doctrine did not bar Poteat’s breach of contract claim because the alleged failure to provide competent legal services could constitute a breach of the parties’ agreement. The Court further held that a legal-services agreement contains an implied duty requiring an attorney to provide competent legal services, even where the agreement does not contain an express provision requiring such services. The Pennsylvania Supreme Court granted review in July 2026 and will consider whether the Superior Court’s decision conflicts with Pennsylvania precedent distinguishing contract and tort claims, including Bruno v. Erie Insurance Co. The Supreme Court will also address whether a plaintiff may maintain a breach of contract claim based on an implied duty to provide competent legal services without identifying a specific contractual provision that was breached. The Supreme Court’s decision could have significant implications for professional liability litigation in Pennsylvania, particularly where plaintiffs seek to characterize claims arising from alleged professional negligence as contractual claims.

Thought Leadership

The Search-Incident-to-Arrest Doctrine Does Not License Strip Searches

In Beatty v. Gardner, No. 25-2860 (3d Cir. Sept. 16, 2026), Kyle Beatty sued police officers Clinton Gardner and Calvin Irvin under 42 U.S.C. § 1983 after they stopped, arrested, and searched him three times during a drug investigation in Williamsport, Pennsylvania. The officers initially smelled marijuana coming from the car in which Beatty was sitting and observed marijuana residue, giving them probable cause to arrest him. Beatty consented to the first pat-down, and the second search was conducted incident to his lawful arrest; neither search uncovered weapons or contraband. The officers then transported Beatty to the police station solely to strip-search him, but the strip search also revealed nothing. The District Court granted the officers summary judgment, concluding that the initial stop, arrest, and first two searches were reasonable and that qualified immunity protected the officers from liability for the strip search. The Third Circuit affirmed, but held that the strip search itself violated the Fourth Amendment. The court concluded that the search-incident-to-arrest doctrine does not automatically permit officers to strip-search an arrestee outside the jail or prison setting. Because strip searches are highly intrusive and the traditional justifications for searches incident to arrest (officer safety and preservation of evidence) did not justify the search of Beatty, the officers generally needed either the arrestee’s consent, exigent circumstances, or a warrant supported by probable cause to believe that a search beneath the clothing would reveal weapons, contraband, or evidence. Here, the officers had none of those justifications. Nevertheless, the court held that qualified immunity barred damages liability because, at the time of the search, the right against a warrantless strip search of an arrestee outside the institutional setting was not clearly established by Supreme Court or Third Circuit precedent. The court likewise upheld qualified immunity on Beatty’s First Amendment retaliation claim and affirmed summary judgment for the officers.