Audrey Copeland, who joined the firm in 1986, is a member of the Post-Trial Appellate Advocacy Practice Group. She concentrates her practice in the state and federal appellate courts and has litigated matters involving a wide range of substantive and procedural issues including professional liability, civil rights claims, land use, coverage, medical malpractice, product liability, workers' compensation and premises liability.
Results
Successfully Affirmed Workers’ Compensation Decision Before the Appeal Board
We convinced the Commonwealth Court to affirm the decision of the Workers’ Compensation Appeal Board in favor of our client, the employer, which upheld the workers’ compensation judge’s denial of a claim petition. By memorandum opinion, the court found that the judge’s credibility findings were neither contradictory nor arbitrary and capricious, and the decision was reasoned. The court agreed with the employer that the defense experts’ opinions constituted substantial evidence, also noting that the Social Security Administration’s findings of disability were irrelevant to the issue of work-relatedness. The court concluded that the claimant failed to sustain her burden of proving a work-related injury, and since the causal connection between her “lingering symptoms and her work duties” was not obvious, she was required to present unequivocal medical evidence establishing that connection, which she failed to do.
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.
Thought Leadership
Defense Digest
On the Pulse…Recent Appellate Victories*
March 1, 2026
Kimberly Berman (Fort Lauderdale, FL) and Brad Blystone (recently retired) successfully obtained an affirmance by the Sixth District Court of Appeal in a premises liability claim, stemming from a slip and fall. The appeal attempted to conflate the burdens of proof on summary judgment. The court rejected the appellants’ arguments and affirmed the final judgment entered in favor of our client without oral argument. Kimberly Berman and Jonathan Kanov (both of Fort Lauderdale, FL) convinced the Fifth District Court of Appeal to affirm a dismissal on behalf of our clients, a well-regarded personal injury law firm and two lawyers who had handled a personal injury. The plaintiff sued the law firm and lawyers for legal malpractice. Our client moved to compel arbitration based on the unambiguous language in the retainer agreement, where the parties agreed to resolve all disputes, including legal malpractice claims, in arbitration and not in court. The trial court granted the motion to compel arbitration, and the plaintiff appealed. The Fifth District dispensed with oral argument and affirmed the dismissal order, sending the plaintiff’s claim to arbitration in accordance with the retainer agreement. Kimberly Berman (Fort Lauderdale, FL) and Heather Carbone (Jacksonville, FL) obtained an affirmance of a final order by the Judge of Compensation Claims (JCC), upheld by the First District Court of Appeal. The order determined an employer/employee relationship and found the statute of limitations barred the claimant’s allegation against his lone statutory employer. The appeal involved the interpretation of section 440.10, Florida Statutes, and a question of whether all employees of a contractor and subcontractors “shall be deemed to be employed in one and the same business’ for purposes of workers’ compensation benefits.” The claimant presented a novel theory that the general contractor and its subcontractor are “unified employers” jointly responsible for the payment of benefits. The JCC rejected the theory, and the First District dispensed with oral argument, affirming the final order in favor of the employers and carriers. Patricia Monahan (Pittsburgh, PA) and Audrey Copeland (King of Prussia, PA) convinced the Pennsylvania Supreme Court to reverse the Superior Court’s en banc decision and reinstate summary judgment in favor of the defendant. The plaintiff brought a promissory estoppel claim against our client as the subrogee of its insureds, the owners of motor vehicles and property destroyed in a garage fire caused by a BMW that our client insured. The plaintiff alleged that our client broke a promise to preserve the BMW for future testing, preventing a product liability claim from being filed. The court granted review to consider (1) whether the Superior Court’s decision was inconsistent with the Supreme Court’s decision in Pyeritz v. Commonwealth, 32 A.3d 687 (Pa. 2011), or with (2) Pennsylvania law on subrogation. The three-Justice majority did not reach the first issue, but held that the subrogation claim failed as a matter of law because the plaintiff’s subrogation rights were limited to recovery against any party liable for the direct or accidental loss or damage to covered property. As a result, the plaintiff lacked standing for its promissory estoppel claim against our client, as they did not cause the property damage. One Justice dissented in part, opining that the plaintiff’s self-designation as subrogee was not fatal and that they had pleaded a promissory estoppel claim, however, he concurred in the majority decision, reasoning that the plaintiff’s claim failed as a matter of law for the same reasons that precluded a negligent spoliation claim in Pyeritz. Another Justice dissented to the extent he would hold that the plaintiff had standing; however, he disagreed that Pyeritz foreclosed the plaintiff’s promissory estoppel claim. *Results do not guarantee a similar result.
What's Hot in Workers' Comp
What’s Hot in Workers’ Comp – Special PA Alert
June 10, 2024
On May 29, 2024, in the matter of Erie Insurance Property & Casualty Company v. David Heater (Workers’ Compensation Appeal Board), No. 148 C.D. 2023, A. Judd Woytek and Audrey L. Copeland (both of King of Prussia, PA) successfully secured the following precedential decision from the Commonwealth Court of Pennsylvania. The claimant was a sole proprietor who suffered an alleged work-related injury on September 28, 2015. The claimant failed to provide notice of his alleged injury to Erie Insurance until February 24, 2017. He filed a Claim Petition on September 6, 2018, just prior to the expiration of the statute of limitations. The workers’ compensation judge issued a decision in July 2020 in which he found that the claim was barred by the notice provisions of the Act due to the claimant’s failure to report the injury to Erie Insurance within 120 days. The judge noted that, since the claimant was his own employer, it could be argued that notice was instantaneous (to himself). However, the judge found that the insurer was the party responsible for the payment of benefits and, therefore, notice had to be provided to the insurer within 120 days. Since the claimant failed to provide notice to Erie Insurance within 120 days of his injury, the judge denied the Claim Petition. The claimant appealed, and the Workers’ Compensation Appeal Board reversed and remanded to the workers’ compensation judge, who then issued another decision in January 2022, awarding benefits. Judd appealed the judge’s second decision to the Appeal Board, which affirmed. Judd and Audrey then appealed to the Commonwealth Court. In its May 29, 2024, decision, the Commonwealth Court agreed with our argument that the claimant needed to provide notice of his work-related injury to Erie Insurance within 120 days of the occurrence of the injury due to his combined status as both the claimant and the sole proprietor/owner/employer in this matter. The Commonwealth Court distinguished this case from prior cases where the employer was a small or closely held corporation. The court specifically noted 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 alleging that he provided notice to himself immediately when the accident occurred but did not bother to report the injury to Erie Insurance for over a year thereafter, would result in an absurdity and put Erie Insurance at a disadvantage in the investigation of the claim. The court note that the definition of “employer” is different in Section 311 and Section 401 of the Act. Section 401 of the Act defines “employer” as including not only the actual employer, but also the employer’s “duly authorized agent, or his insurer, if such insurer has assumed the employer’s liability . . .” The court noted that, under those circumstances, the insurer is entitled to the same rights afforded to the employer, which includes prompt notice of the claim, so that an investigation can be conducted and that evidence does not become stale. The court held, therefore, that since the claimant failed to report his alleged injury to Erie Insurance within 120 days, his claim was barred. The court reversed the Appeal Board and reinstated the judge’s original 2020 decision denying the Claim Petition. Note that the holding in this decision is limited to situations where the claimant is both the injured employee and the sole proprietor/employer. In such a case, the claimant must provide notice of his/her injury to the insurance carrier within 120 days. In all other circumstances, the claimant must only provide notice to the employer within 120 days. What’s Hot in Workers’ Comp – Special PA Alert – June 10, 2024, 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 © 2024 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.
