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Results

  • Successfully Represented an Insurance Company in a Workers’ Compensation Appellate Matter

    We successfully represented an insurance company before the Commonwealth Court of Pennsylvania. The court agreed with our argument that the claimant needed to provide notice of his work-related injury to the defendant insurance company within 120 days of the occurrence of the injury due to his combined status as sole proprietor/owner and also the employee in this matter. The judges distinguished the facts of the case due to the fact that the claimant was a sole proprietor, owner and the only employee of his own business. The court agreed that allowing the claimant to pursue a claim, by claiming that he provided notice to himself immediately when the accident occurred, but did not bother to report the injury to the insurance company for over a year thereafter, would result in an absurdity and put the insurance company at a disadvantage in the investigation of the claim. The court also noted that the definition of “employer” in certain portions of the Act includes not only the actual employer as a business itself, but also the employer’s duly authorized agent or its insurer, if such insurer has assumed the employer’s liability. Since the claimant failed to provide notice to the insurance company within 120 days of his injury, the court held that the Claim Petition was barred. The Claim Petition was dismissed, and the claimant was not entitled to any benefits at all.

  • Establishing Failure to Well-Plead Secures a Win for the Defense

    In our successful appeal to the Commonwealth Court, the workers’ compensation judge had awarded a closed period of benefits and then terminated all benefits, despite the employer’s late answer. The judge found that the description of injury was not well-pled and, therefore, not deemed admitted. The Appeal Board reversed the judge on the full termination of benefits, saying that, since our IME physician did not acknowledge a work-related psychiatric injury, his testimony was in conflict with the admitted injury due to the late answer. They reversed the judge and ordered reinstatement of temporary total disability benefits. The Commonwealth Court found in our favor and reversed. The court held that the judge was correct that the injury was not well-pled and that we were not deemed to have admitted a psychiatric injury. Therefore, they reinstated the judge’s decision which terminated benefits.

  • Successful defense of claim petition alleging neurologic injuries from a slip and fall on ice.

    The claimant alleged issues with his speech, vision and balance. His treating physician diagnosed a concussion with post-concussion syndrome and cervicalgia resulting in gait, visual and speech dysfunction, headaches, nausea, vomiting, dizziness, sensitivity to light and sound, and difficulty walking. The judge limited the injury to a scalp contusion and traumatic Bell’s Palsy, awarded less than 11 weeks’ of benefits, and terminated benefits as of our IME.

  • Favorable decision in Federal Black Lung case.

    We won a favorable decision from an Administrative Law Judge on a Federal Black Lung claim. The judge credited the claimant with 11 years of qualifying coal mining employment, but found that the claimant had failed to prove a totally disabling respiratory impairment and, therefore, denied the claim. We presented evidence from our medical expert that the claimant did not contract coal workers’ pneumoconiosis as the result of his work in the coal mines, and that he was not disabled by a respiratory impairment. The judge addressed the issue of total respiratory disability first and found the claimant failed to meet the burden of proof with a pulmonary function study, an arterial blood gas study, and medical opinion evidence. The judge credited the opinions of our medical expert over those of both of the claimant’s expert and the independent expert retained by the Department of Labor. The judge found no respiratory disability and, therefore, denied the claim.

  • Claim petition alleging lower back injury denied.

    We obtained a favorable decision denying a claim petition that alleged a low back injury, including sprain/strains and intervertebral disc displacement status, after multiple surgeries. The claimant had a lumbar laminectomy in 2016 and a lumbar fusion in 2018. He alleged a work injury in April 2019 when emptying a small trash can into a dumpster. During the course of the litigation, however, the claimant and his doctor offered testimony that the claimant’s back problems, including the 2016 and 2018 surgeries, were related to his general employment duties with the employer and that the April 2019 incident was the “straw that broke the camel’s back.” We presented expert medical testimony from an orthopedic surgeon that the claimant’s back problems were degenerative in nature and were not caused or aggravated by his work activities or the alleged April 2019 incident. The judge denied the claim petition outright and found that the claimant had failed to sustain his burden of proving any work-related injury.

  • Successful defense of Yellow Freight motion.

    We established that the employer was never served with the notice of assignment of the claim petition to a judge. While the claimant’s attorney had properly served the claim petition itself on the employer, we correctly argued that it is the notice of assignment that triggers the employer’s obligation to file an answer within 20 days. We were able to prove that the employer’s address on the notice of assignment had the wrong zip code and that the employer was never served. Therefore, the judge found that the employer had a reasonable excuse for its late answer to the claim petition.

  • Defense defeats claim petition and gains termination of benefits.

    The injury was accepted for a foot contusion for medical benefits only. The claimant claimed much more severe injuries and sought wage loss benefits after his termination from employment. We successfully argued that the injury was limited to a contusion from which the claimant had recovered, and that his termination was for cause. The Workers’ Compensation Judge denied the claim petition and granted our termination petition.

  • Department of Labor sides with defense.

    We received a favorable decision from the Department of Labor (DOL) denying a coal miner’s claim for benefits when the only evidence submitted by his widow was the death certificate listing severe chronic obstructive pulmonary disease (COPD) as the primary cause of death. The DOL claims examiner agreed with our position that the death certificate alone, was insufficient evidence to sustain the claimant’s burden of proving that her husband had totally disabling coal workers’ pneumoconiosis during his lifetime. Benefits were denied.

  • Federal Black Lung benefits denied.

    We were successful in obtaining a decision denying a widow’s claim for Federal Black Lung benefits. The deceased miner worked in underground coal mining for 11 years. His lifetime claim for benefits was denied after numerous claim filings and appeals. The widow then sought survivor’s benefits based upon the opinion of her medical expert, who opined that the miner’s death was hastened by coal workers’ pneumoconiosis. The judge rejected the widow’s expert in favor of our expert, who testified the miner’s death was not caused or hastened by pneumoconiosis. The widow requested reconsideration and attempted to submit additional evidence (an additional medical report and 12 medical journal articles) that she had not submitted during the litigation of the claim. The judge again rejected the claim on reconsideration.

  • Successful defense of reinstatement petition and two penalty petitions.

    In this Pennsylvania workers’ compensation action, the judge found that the claimant failed to prove a loss in earnings related to his work injury since returning to work. Instead, he found that the claimant’s loss in earnings was due to lack of work caused by weather conditions or other factors. Additionally, the judge denied both penalty petitions, finding that the claimant had failed to prove a violation of the Act by the carrier for refusal to pay wage loss benefits and medical bills. The judge found that the medical bills were properly denied by the carrier for lack of documentation as required by the Act.

  • Successful defense of Federal Black Lung Benefits claim.

    We successfully defended a survivor’s claim for Federal Black Lung Benefits. The miner had worked 11 years in underground mining, had acknowledged simple coal workers’ pneumoconiosis (CWP), and died due to heart failure and COPD (per the death certificate). The judge credited the opinions of our medical expert that the miner’s simple CWP did not cause or hasten his death, and rejected the opinions of the claimant’s medical expert, who opined that the miner’s CWP resulted in inflammation and arteriosclerosis that resulted in his heart failure and death.

  • Denial of Federal Black Lung benefits affirmed.

    ​The claimant worked as a coal miner for approximately nine years in underground mining. The administrative law judge denied benefits, finding the claimant had failed to establish that he suffered from a totally disabling respiratory condition. The claimant appealed. The denial of benefits was affirmed on appeal. The Benefits Review Board dismissed the claimant’s arguments that he had additional coal mine employment that would have entitled him to a presumption that his total disability was related to his coal mine employment. The BRB noted that the claimant had failed to prove a total respiratory disability and, therefore, the presumption would not apply irrespective of the number of years of coal mine employment that he proved.

  • Successful defense of Federal Black Lung benefits claims

    The claimant had established that he had worked in the coal mining industry and was exposed to coal dust for a period over 17 years. ​Medical evidence also established that the miner did indeed have coal workers’ pneumoconiosis (Black Lung). However, the judge found that the miner was not totally disabled due to his pneumoconiosis. Therefore, he was not entitled to benefits, and the claim was denied. In another Federal Black Lung benefits claim, we presented testimony to prove, through pulmonary function testing, arterial blood gas testing and medical opinion evidence, that a coal miner who had begun work in the coal mines at the age of twelve did not suffer from a totally disabling respiratory impairment that precluded him from engaging in his usual coal mine employment.

  • Federal Black Lung Fatal Claim Petition Denied.

    We successfully defended a fatal claim petition filed by the widow of a coal miner who had been awarded benefits for totally disabling coal workers’ pneumoconiosis in 1984. Despite the fact the miner had been collecting temporary total disability benefits from 1984 until the time of his death in 2016, we were able to present credible and persuasive medical evidence to the Workers’ Compensation Judge that coal workers’ pneumoconiosis was not a substantial contributing factor to the miner’s death. The fatal claim petition was denied.  

Firm Highlights

Thought Leadership

The Tolling Trap: Filing Alone Will Not Toll the Statute Without Good-Faith Service

The Eastern District of Pennsylvania recently reinforced a critical limitation on bad faith claims, holding that a timely filing alone will not preserve a cause of action absent a good-faith effort to serve the original process. The plaintiff had presented a claim for underinsured motorist benefits to his auto insurer. The insurer evaluated the claim and determined that the plaintiff’s accident-related damages did not exceed the bodily injury liability insurance limits of the at-fault driver and denied his claim. Among other claims, the plaintiff sought to present a claim for insurance bad faith under 42 Pa. C.S.A. § 8371, to which a two year statute of limitation applies. He first filed a praecipe for writ of summons before the expiration of the statute of limitation. However, the plaintiff did not attempt to serve the praecipe or writ until after the statute of limitations had expired. Additionally, the service failed as the plaintiff had mailed the original process to an incorrect address. Despite receipt of the Postal Service’s failure to deliver the original process, the plaintiff did not attempt to re-serve the writ. Two months later, the plaintiff filed a complaint and then successfully served that complaint. The insurer sought to dismiss the plaintiff’s bad faith claim as time-barred by the statute of limitations. The district court agreed. Though the plaintiff had filed a praecipe for a writ of summons prior to the expiration of the statute of limitations, the statute is only tolled if there is a good faith effort to serve that original process. In this case, the court determined that the plaintiff had failed to perform a “good faith effort to serve the original process”. Additionally, though the filing and service of a complaint can serve as alternative original process when the lawsuit is commenced by the filing of a praecipe for a writ of summons, the plaintiff filed his complaint after the statute of limitations had expired. The plaintiff’s bad faith claim was therefore determined to be barred by the statute of limitations and dismissed by the court, with prejudice. A key takeaway for the defense is not to assume that the statute of limitations has been successfully tolled by a plaintiff merely because a praecipe for a writ of summons or complaint has been filed prior to the expiration of the statute. A filed complaint or writ is only part of the equation. The defense should carefully review the docket and filings to confirm that the plaintiff also performed the requisite good faith effort to serve that original process. A thorough review of the docket may reveal that the plaintiff failed to make the good-faith service efforts necessary to toll the statute of limitations.

Thought Leadership

Florida Supreme Court Rules Florida Statute §627.70152 Does not Apply Retroactively

In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.