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What's Hot in Workers' Comp

The Bite Behind the Burden: Delaware Supreme Court Affirms That Prior Factual Findings Do Not Automate Causation for New Injuries

Peed v. Essential Staffing, Inc., 2026 WL 2983683 (Del. Oct. 5, 2026).

October 20, 2026

by Alexander C. Landolfi

Craig Peed, the claimant, suffered severe head injuries in 2012 when a falling tree limb struck him while working for Essential Staffing, Inc. As a result of the injury, he was intubated due to a coma. In 2016, the claimant’s upper teeth fractured at the gum line, prompting him to file a petition for compensability. In 2018, the Industrial Accident Board (“IAB” or the “Board”) weighed competing medical testimony and found a causal link between his coma and intubation to the “desiccation” (drying out) of his upper teeth. The employer and carrier were therefore held responsible for the upper-teeth dental work.

Approximately five years later, Mr. Peed developed issues with his lower teeth, which had worn down to stumps and exposed the nerve roots. His treating dentist performed root canals and recommended crowns. The claimant filed a new petition for additional compensation, arguing that the 2018 IAB findings definitively established that his coma-induced desiccation caused long-term dental damage. The claimant’s treating dentist also testified that the dental bridges placed on the upper teeth caused the lower teeth to wear down.

The employer vigorously defended the petition with their own medical expert, who testified that Mr. Peed’s lower teeth problems were due to poor pre-accident dental care and unrelated to the work injury.  Additionally, the expert testified that dental bridges on the upper teeth would not naturally cause rapid wear on the opposing lower teeth, and noted it was unlikely for someone to develop severe pain in “nine teeth in a row” just six months after previously reporting zero pain during routine visits.

The IAB found the employer’s medical expert more credible and determined that the claimant failed to meet his burden of proof, denying compensation for Mr. Peed’s lower teeth issues.  The Board also found that the claimant’s treating dentist lost credibility by relying on post-root canal X-rays—taken after the teeth had already been ground down to the gum line—to support the claim that the teeth had naturally deteriorated from the accident.

The claimant appealed the IAB’s decision, first to the Superior Court of Delaware and then to the Delaware Supreme Court. Mr. Peed argued that the Board was bound by its 2018 decision under the doctrines of res judicata and collateral estoppel, claiming that the Board had already established his coma caused long-term dental decay. The Supreme Court disagreed. It found that the 2018 decision determined causation only for the upper teeth, while the 2023 petition involved the lower teeth under different clinical circumstances. The Court also clarified that, although the IAB cannot retroactively alter a past award, 19 Del. C. § 2347 permits the Board to evaluate whether a new claim is related to the original industrial accident. Additionally, the Court addressed a procedural objection about late-disclosed defense expert opinions, holding that the IAB’s relaxed evidentiary rules and the claimant’s opportunity for cross-examination were sufficient. The Delaware Supreme Court ultimately affirmed the Superior Court’s ruling and the Board’s denial of benefits for the lower teeth issues.

In Delaware workers’ compensation cases, a claimant’s prior successful petition can often feel like an insurmountable hurdle for employers and insurers. However, the Supreme Court of Delaware recently delivered a pivotal victory for the defense in Peed v. Essential Staffing, Inc., reinforcing that a prior finding of causation does not give claimants a “carte blanche” for subsequent, distinct medical conditions. This decision provides important guidance for insurance adjusters and employers contesting causation on long-tail claims.

A few takeaways from this decision:

  • Separate the Anatomy: Never assume a settled or adjudicated claim dictates the outcome of a new body part.  Force the claimant to prove causation anew if the anatomy or clinical presentation changes (e.g., left knee v. right knee, upper teeth v. lower teeth).
  • Examine Pre- and Post-Procedure Evidence: The turning point in this case was the treating provider’s use of post-procedure X-rays.  Always verify that the medical evidence depicting “degeneration” was captured before any surgical intervention or alteration took place.
  • Equip Your Experts for Cross-Examination: The Court affirmed that defense experts can offer new, responsive opinions during depositions if new medical details come to light.  Ensure your defense experts are thoroughly briefed on the claimant’s long-term treatment records and are ready to pivot to address newly raised medical theories.

Firm Highlights

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

WCJ Improperly Refused to Conduct C&R Hearing and Erroneously Required Settlement of All Pending Petitions

In this case, the claimant sustained injuries in the course and scope of her employment as a registered nurse. The employer acknowledged the injury by a Notice of Compensation Payable (NCP).  Subsequently, a Workers’ Compensation Judge (WCJ) expanded the description of injury. The employer then filed a Termination Petition, alleging the claimant was fully recovered from the injuries. Providers filed Utilization Review (UR) Petitions, challenging UR determinations finding their chiropractic treatment to be not reasonable and necessary. A settlement of the claim was eventually reached, and the employer filed a Petition to Seek Approval of a Compromise and Release (C&R) Agreement. The C&R outlined that the agreement fully resolved all future workers’ compensation claims except for the termination and UR Petitions. Briefs were filed and one day later, the WCJ issued an Interlocutory Order which stated if instructions were not followed regarding filing of a C&R, a settlement hearing date would not be given. The employer complied with the order, and filed the C&R. Subsequently, the WCJ notified the parties that the C&R must resolve all issues in the petitions, or would not be entertained. A settlement hearing was never held, and the WCJ then issued a decision, granting the Termination Petition and dismissing the UR Petitions. The WCJ also said that the Petition for Approval of a C&R was dismissed without prejudice, as the issues in the Termination and UR Petitions went to a decision. The claimant appealed to the Workers’ Compensation Appeal Board (Board). The Board granted the claimant’s appeal, finding that the WCJ violated the requirement of Section 449 that an expedited hearing be held when a Petition for Approval of a C&R is filed.  The Board further held that it was legally incorrect for the WCJ to insist that the C&R resolve all issues raised by the pending Petitions. The Board remanded the case to a new WCJ, and Employer appealed to the Commonwealth Court. The court affirmed the Board and held that the WCJ erred, as a matter of law, by refusing to hold an expedited hearing within 30 days, once the Petition for Approval of a C&R was filed.  The court noted that the language of Section 449(b) is mandatory, and a settlement hearing is not discretionary or dependent on a party’s separate request for a stay, or whether the record has been closed. The court further rejected Employer’s argument that the case should not be remanded to a new WCJ for a new decision on the termination and and UR Petitions, as the Board passed no judgment on whether the C&R Agreement resolved the termination and UR Petitions, and left it for the WCJ to decide in connection with the Petition for Approval of a C&R.

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Marshall Dennehey Announces 2027 New Jersey Super Lawyers And Rising Stars

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CLM 2026 Focus Conference

Allison joins three insurance industry leaders to discuss how cyber coverage disputes, the growing impact of social inflation on bodily injury claim valuation, and the use of artificial intelligence are reshaping the bad faith landscape. The panel will examine emerging sources of extra-contractual exposure, including evolving cyber insurance coverage issues and the challenges of accurately valuing bodily injury claims. Practical approaches to claim evaluation using AI, along with defense strategies designed to help prevent or successfully defend against bad faith litigation, will also be addressed. 

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

News

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

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Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

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.

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Result

Summary Judgment Obtained in Insurance Coverage Case