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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)
    • 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

News

Marshall Dennehey’s John J. Hare Brings Home Attorney of the Year Honors; Firm Named Litigation Department of the Year in Two Categories

Marshall Dennehey took home top honors in three categories at the The Legal Intelligencer’s 2026 Pennsylvania Legal Awards, held June 11 in Philadelphia. The first place awards include: Attorney of the Year: John J. Hare, Chair of the firm’s Appellate Advocacy & Post-Trial Practice Group and Executive Committee member, together with Charles “Chip” Becker of Kline & Specter Litigation Department of the Year, Appellate – Third Win in a Row! Litigation Department of the Year, Product Liability/Mass Torts “There is no one more deserving of Attorney of the Year honors than John. This award is a testament to his exceptional skill, dedication, and leadership—qualities that truly exemplify the very best of our firm,” said G. Mark Thompson, Marshall Dennehey’s President & CEO. “These honors also reflect the strength and depth of our product liability, mass torts, and appellate practices across Pennsylvania and beyond, underscoring our ongoing commitment to delivering outstanding results for our clients.” Attorney of the Year – John J. Hare, Marshall Dennehey, together with Charles “Chip” Becker, Kline & Specter Over the past year, John and Charles were opposing counsel in many of the highest-profile civil appeals in Pennsylvania. John is renowned as a preeminent appellate lawyer on the defense side, and Chip on the plaintiff's side. They have opposed each other repeatedly, exhibiting peerless professionalism and exceptional civility, while zealously litigating under the unremitting pressure of high-profile litigation and record-setting verdicts totaling more than $3.5 billion. They have also collaborated, outside of litigation, on many commissions, committees, and projects of importance to the Pennsylvania judiciary and legal community. Litigation Department of the Year – Appellate Law, Winner (previous winner, 2025 and 2024) 2025 was another standout year for the firm’s Appellate Advocacy & Post‑Trial Practice Group, led by John J. Hare, which was retained to challenge many of Pennsylvania’s “nuclear” verdicts—awards exceeding $10 million. Notably, the department persuaded the Pennsylvania Superior Court to reverse a Philadelphia judgment of $1.09 billion, the largest judgment ever overturned by a Pennsylvania appellate court. The group’s 11 full‑time Pennsylvania‑based appellate lawyers are at the center of Pennsylvania’s most high-profile matters, bringing more than 150 years of combined appellate experience. They routinely handle post‑trial and appellate matters and are frequently engaged to participate in and monitor trials in high‑exposure cases to ensure that critical legal issues are properly raised and preserved for appeal. Litigation Department of the Year – Product Liability/Mass Torts, Winner This marks the first win for the firm’s Pennsylvania Product Liability and Mass Torts practices, which operate within our Casualty Department, managed by Matthew Schorr and Jeff Rapattoni. For almost five decades, Fortune 500 product manufacturers/distributors and their insurers have turned to these groups to defend their litigation. Led by Bradley D. Remick and Vlada Tasich, our Product Liability group’s success can be attributed to its commitment to keeping abreast of ever-changing legal theories, judicial viewpoints, and evolving technology impacting the product liability landscape. Our attorneys have successfully handled thousands of product liability matters in all jurisdictions across the state. Likewise, our mass tort litigation practice – divided into Asbestos & Mass Tort, and Environmental & Toxic Tort Litigation –  has defended manufacturers, distributors, contractors, and premises owners in thousands of personal injury and other claims. Led by Kevin E. Hexstall and Patrick T. Reilly, most attorneys in these groups have more than 20 years of experience, and our seasoned trial team has tried hundreds of cases to verdict, consistently achieving strong results through both trials and settlements. In addition to these awards, Marshall Dennehey was a Litigation Department of the Year finalist for Professional Liability.

Thought Leadership

Unanimous New Jersey Supreme Court Holds That Personal Emails of Public Employees and Officials are Subject to OPRA

In Rosetti v. Ramapo-Indian Hills Regional High School Board of Education, the New Jersey Supreme Court unanimously held that government-related emails, which are contained within personal email accounts, are government records under the Open Public Records Act (OPRA), and a log of those emails must be produced when requested. In reaching this decision, the court conducted an analysis of the OPRA and cited previous cases that held that emails do in fact fall within OPRA’s definition of a record and must be produced when requested pursuant to the Act. The court in Rosetti then had to answer the question as to whether public officials’ personal email accounts that are used for government purposes are subject to OPRA, and found that they are. Rosetti made an OPRA request to the Board of Education seeking email logs from Board members’ personal email accounts. The Board refused to produce the logs and indicated that it was not under any obligation to produce personal email account logs, only from government-related email accounts. The issue was whether a log had to be produced for Board members’ personal email accounts, which they used to conduct Board business. The Board argued that while it was possible to create a log for government-related email accounts through its IT Department, it was not possible to do so for personal email accounts. The court rejected this argument and ruled that Board members are required to search their personal email accounts and create a log of government-related emails housed in those accounts. Once completed, each Board member then must submit a certification detailing the searches that were conducted. The court went one step further with a suggestion to government employees and officials, stating, “[g]overnment agencies should strongly advise their employees, elected officials, and others engaged in government-related business to refrain from using their personal email accounts when conducting government-related business.”  Please do not hesitate to contact me with any questions regarding this case and others pertaining to the OPRA. 

Thought Leadership

Pennsylvania Supreme Court Holds Self-Referral Prohibition Does Not Cover Prescriptions Written by Physicians with Ownership Interests in Dispensing Pharmacies

700 Pharmacy v. Bureau of Workers’ Compensation Fee Review Hearing Office (State Workers’ Insurance Fund); Nos. 97, 98, 99, 100, 101 MAP 2024; decided June 16, 2026; by Justice Mundy.   In this case, Drs. Miteswar Purewal and Shailen Jalali, treating physicians for workers’ compensation claimants, wrote prescriptions for various medications that were filled by 700 Pharmacy. The worker’s compensation insurer refused to pay for the prescriptions on the basis that they were illegal self-referrals under the Act. 700 Pharmacy subsequently filed fee review applications with The Bureau of Workers’ Compensation Medical Fee Review Office. At a fee review hearing, both physicians stipulated they had a financial interest in the pharmacy.  The physicians argued that the Anti-Referral Provision of the Act does not bar self-referrals on prescription drugs and pharmaceutical services, since the provision does not specifically identify prescription drugs. The Fee Review Hearing Officer rejected this argument and found that prescriptions for medications are prohibited under the “goods or services” language included in the provision. 700 Pharmacy appealed to the Commonwealth Court, and the court affirmed, agreeing with the Hearing Officer’s interpretation of “goods and services” as encompassing prescriptions. 700 Pharmacy appealed to the Supreme Court.  The Supreme Court reversed the decisions of the Hearing Officer and the Commonwealth Court, holding that the term “goods and services” in the Anti-Referral Provision of the Act did not include prescriptions. According to the Court, “goods and services” was not a catch-all, but simply explanatory as to the eight enumerated categories in the provision. The provision (Section 306(f.1)(3)(iii)) reads, in pertinent part: Notwithstanding any other provision of law, it is unlawful for a provider to refer a person for laboratory, physical therapy, rehabilitation, chiropractic, radiation oncology, psychometric, home infusion therapy  or diagnostic imaging, goods or services pursuant to this section if the provider has a financial interest with the person or in the entity that receives the referral. The Court said that if the General Assembly wanted to specifically include prescription drugs and pharmaceutical services in the Anti-Referral Provision, they would have done so. They pointed out that prescription drugs and pharmaceutical services were included by the legislature in Section 306 (f.1)(3)(vi) of the Act as to reimbursement, and claimed that their omission from the Anti-Referral Provision supports the conclusion that those services are not included in the Anti-Referral Provision’s self-referral prohibition.

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Thought Leadership

Coverage Determined, Judgment Paid, Bad Faith Survives: Fourth DCA’s Opinion Highlights the Distinction Between Contractual and Extra-Contractual Damages

In Healthy Food Experts, LLC v. Amguard Ins. Co., No. 4D2025-0181 (4th DCA June 10, 2026), the Fourth District Court of Appeal explained that an insurer’s payment of a judgment in a breach of contract case does not automatically eliminate a later bad faith claim seeking extra-contractual damages. The decision provides guidance on when a first-party bad faith claim may still proceed after a coverage dispute has already been resolved by a judgment. Healthy Food Experts, LLC involved a dispute related to a property damage claim submitted under a commercial insurance policy issued by the insurer following a ceiling collapse at the insured’s restaurant. The insurer denied coverage for the insured’s losses for business personal property and business income, but extended coverage for the food spoilage losses. As a result, the insured filed a breach of contract action and ultimately obtained a jury verdict. The insurer appealed the verdict and, while the appeal was pending, the insured filed a Civil Remedy Notice (CRN) seeking payment for the judgment plus interest. The insurer failed to cure the CRN within the statutory sixty-day cure period, but paid the judgement in full with accrued interest following the appeals court’s per curiam affirmance. Nevertheless, the insured filed a first party bad faith lawsuit claiming to have suffered extra-contractual damages. In response to the bad faith suit, the insurer filed a Motion to Dismiss for failure to state a cause of action, relying on Fridman v. Safeco Insurance Co. of Illinois, 185 So. 3d 1214 (Fla. 2016) stating that damages were fixed by judgment of the breach of contract suit and the insured could not recover additional damages beyond those already awarded. The insurer also argued that the judgment did not exceed the insured’s policy limits, which was a required element of a first party bad faith claim. The trial court dismissed the bad faith action based on Fridman, concluding the insured could not seek any additional damages.  The insured appealed the court’s ruling to the Fourth DCA arguing the trial court’s order conflicts with Florida law and misapplies Fridman, as a contractual damage determination in the underlying suit establishes the “condition precedent to prosecute a first party bad faith action.” Cingari v. First Protective Ins. Co., 377 So. 3d 1169, 1174 (Fla. 4th DCA 2024). Further, the insured argued that the only purpose to the binding language in Fridman is to prevent the re-litigating of the same damages, which in this case are the contractual damages. The insured asserted the damages were not the “same” as they were seeking consequential damages from the insurer’s alleged bad faith. The Fourth District emphasized in its ruling that a first party bad faith claim is not ripe for litigation until there has been the following: a determination of the insurer’s liability for coverage; a determination of the extent of the insured’s contractual damages, and the required civil remedy notice is filed pursuant to §624.155(3)(a).  Demase v. State Farm Fla. Ins. Co., 239 So. 3d 218, 221 (Fla. 5th DCA 2018) The court concluded that the necessary conditions were satisfied as the jury verdict determined both coverage and the extent of the insured’s contractual damages, and the insured properly filed a civil remedy notice, so the bad faith claim was ripe for litigation. The Fourth DCA further explained the insured could not seek contractual damages in its bad faith action, which was previously litigated in its breach of contract suit. However, the court determined the insured could seek “extra-contractual damages,” which were not recoverable in the insured’s breach of contract suit, which may include interest, court cost, and reasonable attorney’s fees incurred by the insured. Further, the court held excess judgment is not essential in a first party bad faith claim and the insurer’s late payment of the judgment did not preclude the insured’s bad faith action. As a result, the Fourth District Court of Appeals reversed the trial court’s final dismissal order of the bad faith action. This opinion highlights the distinction between contractual and extra-contractual damages. Moreover, this case demonstrates that a judgment does not necessarily end the dispute in a first party property claim as it is could also serve as a prerequisite of a bad faith action. The decision serves as a reminder that insurers may face bad faith exposure notwithstanding the payment of a judgment in an underlying breach of contract action.