.

Kimberly A. Boyer-Cohen

Portrait of Kimberly A. Boyer-Cohen

Kimberly's legal practice is devoted solely to post-trial and appellate advocacy, dealing with a wide variety of substantive matters including professional malpractice, civil rights litigation, products liability, employment law and premises liability. In her capacity as an appellate attorney, Kimberly has handled over 150 appeals, including oral arguments when necessary before the Pennsylvania Superior Court, Pennsylvania Commonwealth Court, Pennsylvania Supreme Court and the Third Circuit Court of Appeals.
 
In 1992, Kimberly graduated from Penn State University with a B.S. in Labor and Industrial Relations. After working for several years in the area of human resources, she attended Temple University School of Law where she received her juris doctor in 1999. While at Temple, Kimberly was involved in the Moot Court Honor Society and the Women's Law Caucus and served on the executive board of both organizations.
 
Kimberly is admitted to practice in Pennsylvania and before the Third Circuit Court of Appeals and the Sixth Circuit Court of Appeals. She is a member of the Philadelphia Bar Association, where she is active in the Women in the Profession Committee and the Appellate Courts Committee. Also at the Pennsylvania Bar Association, Kimberly is involved in the Commission on Women in the Profession and the Post-Trial and Appellate Practice Committee.
 
Prior to joining Marshall Dennehey in 2001, Kimberly worked for a Philadelphia law firm where her practice focused on construction litigation, labor and employment law and defense litigation. 

    • Temple University Beasley School of Law (J.D., 1999)
    • The Pennsylvania State University (B.S., 1992)
    • Pennsylvania, 1999
    • U.S. District Court Eastern District of Pennsylvania, 2000
    • U.S. Court of Appeals 3rd Circuit, 2002
    • U.S. Court of Appeals 6th Circuit, 2006
    • Supreme Court of the United States, 2008
    • AV® Preeminent™ by Martindale-Hubbell®
    • Litigation Counsel of America Fellows
    • Pennsylvania Super Lawyer (2013-2022)
    • Top Women in Law, The Legal Intelligencer (2016)
    • Pennsylvania Bar Association, Commission on Women in the Profession
    • Pennsylvania Bar Association, Post-Trial and Appellate Practice Committee.
    • Philadelphia Bar Association, Appellate Courts Committee, Co-Chair (2009 to present)
    • Philadelphia Bar Association, Women in the Profession Committee
    • Preserving Issues In The Trial Court, NACLE, April 1, 2014
    • Professionalism in the Law, Villanova Law School, September 2012
    • Creating a Win-Win Mentoring Program for Female Attorneys and the Firm, American Conference Institute's Premier Conference on Retaining and Promoting Female Attorneys, May 22, 2007
    • “Pennsylvania Supreme Court Refuses to Expand Lawyer Liability,” Defense Digest, January 2021, Vol. 27, No. 1
    • “Occupant In a Fleeing Vehicle Is Not an Innocent Bystander…Or Is He?,” Defense Digest, Vol. 20, No. 1, March 2014
    • "Navigating The 1925(b) Minefield Of Waiver - The Pennsylvania Supreme Court's Attempt To 'Clarify The Confusion And Quell The Consternation'," Defense Digest, June, Vol. 14 No. 2, 2008
    • "Stipulating to Cap on Compensatory Damages Limits Potential Delay Damages," Defense Digest, March, Vol. 12 No. 1, 2006
    • "The Trend In Construing the Ohio Employer Intentional Tort Exception -A Consistent, Workable Standard or Confusing, Expansive Quandary?," Defense Digest, December, Vol. 9 No. 4, 2003
    • "Failure to Anticipate Potential Mail Delays May Result in a Party's Loss of Rights," Defense Digest, March, Vol. 8 No. 1, 2002
    • "A Taint of Evidence Claim of Error - It 'Taint' So Effective in Civil Cases'," Defense Digest, December, Vol. 8 No. 4, 2002
    • By a vote of 7-0, the Pennsylvania Supreme Court reversed the Superior Court and the trial court and ruled that Kim’s client, a general contractor, was immune from suit under Pennsylvania’s statutory employer doctrine.  The ruling nullified a large verdict against the general contractor.  Twenty-one construction and insurance industry groups joined together as amici to support John’s appeal to the Supreme Court.  Patton v. Worthington Associates, 2014 Pa. LEXIS 788 (March 26, 2014)
    • The Pennsylvania Superior Court dismissed a highly-publicized death case filed against Kim's client in Pennsylvania based upon the doctrine of forum non conveniens under Pennsylvania's long-arm statute, 42 Pa.C.S. § 5322(e).  Jones v. Morey's Pier Inc., No. 2990 EDA 2012 (March 10, 2014)
    • The Superior Court vacated a large judgment against Kim's client and remanded for the entry of judgment notwithstanding the verdict, finding that the plaintiff had failed to establish the store had actual or constructive notice of the allegedly defective condition.  Davis v. Target Corporation, 2098 EDA 2011 (Pa. Super., March 27, 2013).
    • In a case of first impression, the Pennsylvania Supreme Court reversed the en banc Superior Court's finding that "a patient does have a cause of action against either a psychiatrist or a general practitioner rendering psychological care, when during the course of treatment the physician has a sexual relationship with the patient that causes the patient's emotional or psychological symptoms to worsen."  The Pennsylvania Supreme Court granted allocatur limited to deciding "Whether, for purposes of determining professional negligence, a general practitioner who provides mental health treatment to a patient is held to the same higher duty as a specialist in psychiatry or psychology?"  After engaging in a very exhaustive review and analysis of the law in Pennsylvania, as well as other jurisdictions, the Pennsylvania Supreme Court held that as a general practitioner, Kim's client was under no specific or "heightened" duty in tort to refrain from sexual relations with his patient under the circumstances where he provided "incidental mental health treatment."  In doing so, the Supreme Court rejected the Superior Court's decision which held the doctor to a novel duty and standard.  Thierfelder v. Wolfert, 52 A.3d 1251 (Pa. 2012).
    • The Pennsylvania Commonwealth Court vacated a large judgment against Kim's client, a township, and remanded for the entry of judgment notwithstanding the verdict, on the basis that the trial evidence failed to demonstrate that the township was responsible for the decedent's death.  Rahman v. Falls Township, 2012 Pa. Commw. Unpub. LEXIS 126 (Pa.Cmwlth., January 6, 2012).
    • The Pennsylvania Superior Court reversed the ruling of the trial court and awarded a judgment notwithstanding the verdict, vacating a large verdict against Kim's client, a mutual insurance company, on the basis that the insurer's conduct in handling a fire damage claim did not constitute bad faith as a matter of law.  Edkin v. Brethren Mutual Insurance Co., 1331 MDA 2009 (Pa. Super., February 4, 2011)
    • he Pennsylvania Superior Court vacated an adverse jury verdict and remanded for a new trial in favor of Kim's client, one of the world's leading construction firms, in its claim for contractual indemnity. Skanska USA Buildings, Inc. v. Gory Mechanical Contractors, 345 EDA 2010 (Pa. Super., January 19, 2011)
    •   The Pennsylvania Superior Court affirmed the judgment of the trial court and upheld the dismissal of all claims against Kim's client, an investigating company, on the basis that the plaintiff, who was seeking workers' compensation benefits from his employer, failed to show that he had an expectation of privacy while participating in a worship service in a sanctuary. Tagouma v. Investigative Consultant Servs., 4 A.3d 170 (Pa. Super. 2010).
    • The Pennsylvania Superior Court vacated an adverse jury verdict and remanded for the entry of judgment notwithstanding the verdict in favor of Kim's client on the basis that  the trial court failed to make the threshold determination of whether an absolute privilege applied to the hospital's use of the plaintiff's confidential personnel file at a labor relations hearing involving unionization of nurses.  Moreover, the Superior Court determined that the record showed no evidence of abuse of that privilege and made clear the purpose of the disclosure was genuine and related to the NLRB proceedings. Doe v. Wyo. Valley Health Care Sys., 987 A.2d 758 (Pa. Super. 2009).
    • Successfully argued in the Superior Court that a methadone clinic, which took steps to regulate the dissemination of methadone in accordance with federal guidelines, did not owe a duty of care to a third party who lethally overdosed after buying methadone that was stolen from a patient of the clinic." to say "The Superior Court affirmed the grant of judgment in favor of Kim's client on the basis that a methadone clinic, which took steps to regulate the dissemination of methadone in accordance with federal guidelines, did not owe a duty of care to a third party who lethally overdosed after buying methadone that was stolen from a patient of the clinic.  McCandless v. Edwards, 908 A.2d 900 (Pa. Super. 2006)
    • Successfully argued in the Superior Court that dismissal of a medical malpractice complaint was required when the cause of action arose outside of Pennsylvania, even if the trial court has jurisdiction" to say "In a case of first impression, Kim successfully arged in the Superior Court that dismissal of a medical malpractice complaint was required when the cause of action arose outside of Pennsylvania, even if the trial court has jurisdiction.  Searles v. Estrada, 856 A.2d 85 (Pa. Super. 2004)

Results

Dismissal of Legal Malpractice Action per Lease Agreement Dispute

We obtained the dismissal of a legal malpractice action against our client arising from its representation of the plaintiff in a lease agreement dispute. After the deadlines passed for completion of discovery and production of the plaintiff’s expert report, the trial court granted summary judgment in favor of our client on the basis that the plaintiff’s claim for professional negligence failed as a matter of law because the plaintiff failed to produce an expert report to support its allegations of professional negligence. On appeal, the Pennsylvania Superior Court affirmed the dismissal and rejected the plaintiff’s argument that it had been improperly sanctioned for a discovery violation. In support of its affirmance, the Superior Court found that summary judgment was properly granted because the plaintiff had been given ample time in which to satisfy its evidentiary burden of producing an expert report, but failed to act with due diligence and could not substantiate each element of its claim without an expert report. 

Dismissal of Legal Malpractice Action Obtained

The plaintiff brought a professional negligence claim against our client arising from the firm’s representation of the plaintiff in a lease agreement dispute. After the deadlines passed for the completion of discovery and the production of the plaintiff’s expert report, the trial court granted summary judgment in favor of our client on the basis that the plaintiff’s claim for professional negligence failed as a matter of law because the plaintiff failed to produce an expert report to support its allegations of professional negligence. On appeal, the Pennsylvania Superior Court affirmed the dismissal and rejected the plaintiff’s argument, that it had been improperly sanctioned for a discovery violation. In support of its affirmance, the Superior Court found that summary judgment was properly granted because the plaintiff had been given ample time in which to satisfy its evidentiary burden of producing an expert report but failed to act with due diligence and could not substantiate each element of its claim without an expert report. True Railroad Realty v. McNees Wallace and Nurick, LLC, _ A.3d _, 2022 PA Super 70 (April 19, 2022).

Thought Leadership

Defense Digest

Pennsylvania Supreme Court Refuses to Expand Lawyer Liability

January 29, 2021

Key Points: Pennsylvania Supreme Court refused to adopt the continuous representation rule to toll the statute of limitations in a legal malpractice action. Statutes of limitations are legislative in character and consideration of tolling doctrines, such as the continuous representation rule, is most appropriately viewed as an exercise in statutory construction. By refusing to adopt a different rule for legal malpractice cases, this decision has strengthened the public policy of prompt claim resolution and eliminated the prospect of a lawyer's indefinite liability for stale claims. On December 22, 2020, the Pennsylvania Supreme Court issued an opinion in Clark v. Stover, _ A.3d _, 2020 WL 7502334 (Pa. Dec. 22, 2020), in which it refused to adopt the continuous representation rule to toll the statute of limitations in a legal malpractice action. Under the continuous representation rule, the applicable statute of limitations would not begin to run until the date on which the attorney-client relationship is terminated. Edwin Schwartz and Nicole Ehrhart, shareholders in our Professional Liability Department, litigated the case at the trial court level, and Kimberly A. Boyer-Cohen, special counsel in our Appellate Advocacy and Post-Trial Practice Group, was successful in defending that result before the Pennsylvania Supreme Court. David Clark brought claims of professional negligence and breach of contract against Jeffrey Stover, Esquire, and his law firm. Mr. Stover had represented Mr. Clark in an underlying estate dispute in which Mr. Clark sought to contest the will of his deceased brother. Mr. Clark's claims in the underlying action were dismissed on November 10, 2009, and he admittedly learned of their dismissal within one week of the order. Mr. Stover subsequently appealed the decision in the underlying action on Mr. Clark's behalf, but the trial court's dismissal of the claims was affirmed on May 19, 2011, and allocatur was denied on May 16, 2012. Mr. Clark did not commence his action against Mr. Stover and his law firm until October 1, 2015, at which time he alleged that Mr. Stover had failed to adequately prosecute the underlying action on his behalf. Upon Mr. Stover's motion, the common pleas court awarded summary judgment in favor of the defendants on the basis that the claims were untimely and barred by the applicable statutes of limitations. In doing so, the trial court found that Mr. Clark was aware of the alleged negligence and the asserted breach more than four years before filing the malpractice action such that the discovery rule and fraudulent concealment doctrine did not apply. On appeal, the Superior Court affirmed. The Superior Court also addressed Mr. Clark's request for adoption of the continuous representation rule to permit statutes of limitations for causes of action sounding in legal malpractice to be tolled until the attorney’s ongoing representation is complete. In rejecting Mr. Clark's request, the Superior court explained that it was bound by its previous rejection of the continuous representation rule in Glenbrook Leasing Co. v. Beausang, 839 A.2d 437, 442 (Pa. Super. 2003), aff’d per curiam, 881 A.2d 1266 (Pa. 2005). The Pennsylvania Supreme Court subsequently allowed discretionary appeal solely to consider whether to adopt the continuous representation rule. On appeal, Mr. Clark argued that strong policy justifications support the rule's implementation, including the client's entitlement to repose confidence in a lawyer's abilities, avoidance of disruption of attorney-client relationships and providing the opportunity for lawyers to cure mistakes before being sued. Mr. Clark also argued the continuous representation rule was favored by a majority of other jurisdictions. In response, Mr. Stover argued that adoption of the continuous representation rule would adversely impact the purpose of the statute of limitations—"to expedite litigation and thus discourage delay and the presentation of stale claims which may greatly prejudice the defense of such claims." With regard to policy, Mr. Stover explained that the longer four-year statute of limitations which applies to legal malpractice claims sounding in contract, as well as the discovery rule and the fraudulent concealment doctrine, already provides substantial protections to plaintiffs. Furthermore, application of the continuous representation rule would also serve as a disincentive for lawyers to remain involved in matters to attempt to remediate difficulties which may arise during the course of legal representation. Finally, Mr. Stover highlighted that the rejection or refusal to adopt the continuous representation doctrine is in keeping with the approach of many other jurisdictions and pointed out that, of the jurisdictions that apply a continuous representation approach, several limit the application to instances in which the plaintiff/client lacks knowledge of the alleged malpractice prior to the termination of the attorney-client relationship. The Pennsylvania Supreme Court agreed with Mr. Stover’s position. The court reasoned that statutes of limitations are legislative in character and that consideration of tolling doctrines, such as the continuous representation rule, is most appropriately viewed as an exercise in statutory construction. Notably, however, the Pennsylvania Supreme Court found that Mr. Clark's argument was entirely policy-driven and that he pointed to nothing in the relevant statutes that would militate in favor of application of a continuous representation approach. The Pennsylvania Supreme Court concluded that the appropriate balance should be determined by the General Assembly and affirmed the dismissal of Mr. Clark's legal malpractice claims. By refusing to adopt a different rule for legal malpractice cases, the decision in Clark has bolstered the public policy of prompt claim resolution and eliminated the prospect of a lawyer's indefinite liability for stale claims. As has historically been the case, the statutory period for a legal malpractice cause of action commences upon the happening of the alleged breach of duty and may only be tolled, in appropriate cases, by the discovery rule or the fraudulent concealment doctrine. The Pennsylvania Supreme Court's holding in Clark confirms the long-standing rejection of the continuous representation rule in the Commonwealth and makes clear that attorneys will not be subjected to a more stringent statute of limitations than other professionals. *Ed is a shareholder in our Harrisburg, Pennsylvania office and can be reached at (717) 651-3700 or easchwartz@mdwcg.com. Kim is special counsel in our Philadelphia, Pennsylvania office. She can be reached at (215) 575-2707 or kaboyer-cohen@mdwcg.com. Nicole, a shareholder, works in our Harrisburg office and can be reached at (717) 651-3512 or nmehrhart@mdwcg.com. Defense Digest, Vol. 27, No. 1, January 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin 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. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Legal Updates for Lawyers' Professional Liability

Pennsylvania Supreme Court Refuses to Expand Lawyer Liability

January 6, 2021

On December 22, 2020, the Pennsylvania Supreme Court issued an opinion in Clark v. Stover, _ A.3d _, 2020 WL 7502334 (Pa. Dec. 22, 2020), in which it refused to adopt the continuous representation rule to toll the statute of limitations in a legal malpractice action. Under the continuous representation rule, the applicable statute of limitations would not begin to run until the date on which the attorney-client relationship is terminated. Kimberly A. Boyer-Cohen, special counsel in our Appellate Advocacy and Post-Trial Practice Group, was successful in defending that result before the Pennsylvania Supreme Court. David Clark brought claims of professional negligence and breach of contract against Jeffrey Stover, Esquire, and his law firm. Mr. Stover had represented Mr. Clark in an underlying estate dispute in which Mr. Clark sought to contest the will of his deceased brother. Mr. Clark's claims in the underlying action were dismissed on November 10, 2009, and he admittedly learned of their dismissal within one week of the order. Mr. Stover subsequently appealed the decision in the underlying action on Mr. Clark's behalf, but the trial court's dismissal of the claims was affirmed on May 19, 2011, and allocatur was denied on May 16, 2012. Mr. Clark did not commence his action against Mr. Stover and the law firm until October 1, 2015, at which time he alleged Mr. Stover had failed to adequately prosecute the underlying action on his behalf. Upon Mr. Stover's motion, the common pleas court awarded summary judgment in favor of the defendants on the basis that the claims were untimely and barred by the applicable statutes of limitations. In doing so, the trial court found that Mr. Clark was aware of the alleged negligence and the asserted breach more than four years before filing the malpractice action such that the discovery rule and fraudulent concealment doctrine did not apply. On appeal, the Superior Court affirmed. The Superior Court also addressed Mr. Clark's request for adoption of the continuous representation rule to permit statutes of limitations for causes of action sounding in legal malpractice to be tolled until the attorney’s ongoing representation is complete. In rejecting Mr. Clark's request, the Superior court explained that it was bound by its previous rejection of the continuing representation rule in Glenbrook Leasing Co. v. Beausang, 839 A.2d 437, 442 (Pa. Super. 2003), aff’d per curiam, 881 A.2d 1266 (Pa. 2005). The Pennsylvania Supreme Court subsequently allowed discretionary appeal solely to consider whether to adopt the continuous representation rule. On appeal, Mr. Clark argued that strong policy justifications support the rule's implementation, including the client's entitlement to repose confidence in a lawyer's abilities, avoidance of disruption of attorney-client relationships and providing the opportunity for lawyers to cure mistakes before being sued. Mr. Clark also argued the continuing representation rule was favored by a majority of other jurisdictions. In response, Mr. Stover argued that adoption of the continuing representation rule would adversely impact the purpose of the statute of limitations "to expedite litigation and thus discourage delay and the presentation of stale claims which may greatly prejudice the defense of such claims." With regard to policy, Mr. Stover explained that the longer four-year statute of limitations which applies to legal malpractice claims sounding in contract, as well as the discovery rule and the fraudulent concealment doctrine, already provides substantial protections to plaintiffs. Furthermore, application of the continuous representation rule would also serve as a disincentive for lawyers to remain involved in matters to attempt to remediate difficulties which may arise during the course of legal representation. Finally, Mr. Stover highlighted that the rejection or refusal to adopt the continuous representation doctrine is in keeping with the approach of many other jurisdictions and pointed out that, of the jurisdictions that apply a continuous representation approach, several limit the application to instances in which the plaintiff/client lacks knowledge of the alleged malpractice prior to the termination of the attorney-client relationship. The Pennsylvania Supreme Court agreed with the position of Mr. Stover. The court reasoned that statutes of limitations are legislative in character and consideration of tolling doctrines, such as the continuous representation rule, is most appropriately viewed as an exercise in statutory construction. Notably, however, the Pennsylvania Supreme Court found that Mr. Clark's argument was entirely policy-driven and that he pointed to nothing in the relevant statutes that would militate in favor of application of a continuous representation approach. The Pennsylvania Supreme Court concluded that the appropriate balance should be determined by the General Assembly and affirmed the dismissal of Mr. Clark's legal malpractice claims. By refusing to adopt a different rule for legal malpractice cases, the decision in Clark has bolstered the public policy of prompt claim resolution and eliminated the prospect of a lawyer's indefinite liability for stale claims. As has historically been the case, the statutory period for a legal malpractice cause of action commences upon the happening of the alleged breach of duty and may only be tolled, in appropriate cases, by the discovery rule or the fraudulent concealment doctrine. The Pennsylvania Supreme Court's holding in Clark confirms the long-standing rejection of the continuous representation rule in the Commonwealth and makes clear that attorneys will not be subjected to a more stringent statute of limitations than other professionals.   The material in this law alert has been prepared for our readers by Marshall Dennehey Warner Coleman & Goggin. It is solely intended to provide information on recent legal developments, and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. If you receive the alerts in error, please send a note tamontemuro@mdwcg.com. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved.

Firm Highlights

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.

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.

Thought Leadership

Appellate Division Reversed Trial Judge's Orders Granting a Plaintiff's Section 40 Summary Judgement Motion

In Haskins v. Casey, et al., the plaintiff Dane Haskins worked for defendant Ekornes, Inc. (Ekornes) as a material handler. In June 2021, he filed a workers’ compensation claim petition for benefits due to a left shoulder injury in December 2020. He then resolved his workers’ compensation claim in November 2022 under an Order Approving Settlement. In January 2023, he filed a lawsuit against Ekornes and later amended to add additional claims and name other defendants, including the Ekornes president, chief financial officer, and director of human resources. In May 2025, a second amended complaint alleged that after he filed the workers compensation claim, Ekornes placed him on leave under the Family and Medical Leave Act (FMLA), denied his request for a work accommodation, and ultimately terminated him from employment in December 2021. He pleaded several causes of action asserting violations of the New Jersey Law Against Discrimination (LAD) as well as fraudulent concealment and wrongful discharge. The plaintiff then moved for partial summary judgment, seeking an order enforcing Section 40 of the Workers’ Compensation Act (WCA) as well as summary judgment on his FMLA claims. The defendants opposed the motions and cross-moved for summary judgment on the FMLA claims. After arguments, the court entered an order in December 2025, denying the FMLA motion and cross motion and granting the plaintiff’s Section 40 motion. In the order, the court permitted the plaintiff to pursue compensatory damages at trial in connection with the bodily injury claim. The court also allowed the plaintiff to present evidence of any workers’ compensation benefits to support his claim. The court then denied the defendant's subsequent reconsideration motion in February 2026. The defendants that appealed the Section 40 aspect of the orders. In reviewing the appeal de novo, the Appellate Division rejected the plaintiff's argument that the work-related injury arose out of his discrimination claims under the LAD. The plaintiff argued that he should be able to pursue a personal injury claim as a part of his LAD claim, noting that the employer’s compensation carrier would be able to assert a lien against any recovery against his LAD claims. In distinguishing between the Richter vs. Oakland Board of Education, 246 N.J. 507 (2021) case, in which the Court found that any recovery would be subject to a Section 40 lien as the allegation was that the defendants failed to accommodate her pre-existing diabetic condition, which resulted in bodily injury. In this case, the Appellate Division indicated that there was no bodily injury caused by Ekornes’ failure to accommodate a pre-existing disability. Rather, the shoulder injury was a result of a workers compensation claim, for which he received appropriate benefits previously. The Appellate Division noted that if the plaintiff was successful in proving his LAD claims, he would be entitled to damages caused by the discriminatory discriminatory conduct such as lost wages and emotional distress damages and that there will be no Section 40 lien. In addition, the Appellate Division disagreed that the petitioner could present evidence about and seek damages for his shoulder injury at trial. Although the petitioner argued that a defendant who retaliated against an employee for filing a workers’ compensation claim should not benefit from the exclusivity provision of the WCA, the Appellate Division noted that the Legislature did not include this type of scenario in the statue nor did any of the case law recognize this type of claim as a remedy. As such, the Appellate Division reversed the December 2025 order granting the the plaintiff’s Section 40 summary judgment motion as well as the February 2026 reconsideration motion order. The Appellate Division noted that they did not intend to limit the plaintiff in his pursuit of his other claims on under the LAD, FMLA, and workers’ compensation retaliation causes of action.