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What's Hot in Workers' Comp

Commonwealth Court affirms denial of Claim Petition that alleged occupational disease of lead toxicity.

Jerry Mercer v. Active Radiator MPN, Inc. (WCAB); No. 1326 C.D. 2023; filed June 3, 2024; Judge Fizzano Cannon

July 1, 2024

by Francis X. Wickersham

On August 24, 2018, the claimant advised the employer that he had sustained a work-related injury due to lead exposure. The employer issued a notice of denial on September 1, 2018. On September 4, 2020, the claimant filed a Claim Petition seeking benefits as of September 21, 2017, and ongoing, with partial disability between July 1, 2018, and May 31, 2019. 

According to the underlying evidentiary record, the claimant was 60 years old and had worked 40 hours per week since 2015 as a solderer and welder, where he worked with lead solutions and wore safety gloves. The lead solution would get on his clothes, and the process created smoke. The claimant did not recall being exposed to lead in the past. He would at times get sore in his nasal membranes and have nosebleeds, which he thought were from fumes. The claimant had a history of smoking a pack of cigarettes per day. In September 2017, the claimant was told that he was being let go for performance reasons. He essentially did not work from that time due to anxiety and trust issues, which he said were related to the end of his employment with the employer. The claimant had symptoms of headaches and pressure in his face, neck, and ears. 

The claimant presented testimony from multiple medical experts—a PET scan specialist, a clinical psychologist and a psychiatrist—all of whom testified that exposure to lead at work caused the claimant to experience symptoms consisting of lack of concentration, tension, irritability, loss of balance, memory loss, and cognitive impairment and deficits. A vocational expert for the claimant further testified that the claimant’s occupational ability had been entirely eroded since working for the employer. 

The employer presented testimony from a safety manager testified that when their workers began employment, they watch videos and are given handouts regarding the dangers of lead exposure and the need for precautions. This witness also testified that the claimant’s workspace had exhaust fans and a ventilation system, and that uniforms provided to workers are left at the workplace each day and sent out for cleaning. The safety manager also testified that workers are tested for lead every six months. After the claimant’s November 2016 test, an occupational health doctor recommended further testing and removal from the workplace. The safety manager testified that the claimant was laid off in September 2017, along with a work partner, due to an industry slowdown, not due to the claimant’s high test results. The employer also presented a number of experts—infectious disease specialist, psychologist, toxicologist and neurologist—who testified that the claimant had a low level of lead exposure at work, and that the studies performed on the claimant’s brain—and relied on by the claimant’s experts for their opinions on causation—were not fully diagnostic of high exposures to lead. Ultimately, the workers’ compensation judge issued a decision denying the Claim Petition. The claimant appealed to the Appeal Board, which affirmed.

On appeal to the Commonwealth Court, the claimant raised multiple issues, including that the judge capriciously disregarded evidence, failed to issue a reasoned decision, the decision was not supported by the substantial evidence of record, and the judge erred in finding that the occupational disease rebuttable presumption did not apply. 

Relative to the capricious disregard argument, the court stated that, while the claimant was exposed to lead at work, and clearly believed that his current issues were related, his evidence failed to establish either lead toxicity or that his current deficiencies were due to his exposure. The fact that the workers’ compensation judge did not find the claimant’s testimony on this issue trustworthy did not amount to capricious disregard of the evidence. 

As for the claimant’s reasoned decision argument, the court concluded that the claimant failed to establish that the judge insufficiently explained the credibility determinations he made or that they were based on wholly erroneous or incompetent evidence. The court also found that the judge’s decision was based on substantial competent evidence, even though the employer’s experts testified to one degree or another that lead toxicity can result in varied, and even diffuse, manifestations and can be difficult to diagnose or definitively rule out in the absence of baseline lead testing before the claimant worked for the employer. 

Finally, the court found that in order for the occupational disability presumption under Section 301(e) of the Act to apply, the claimant must first establish that he has actually sustained and been disabled by the claimed occupational disease. If the question of whether an occupational disease has been sustained is in dispute and the workers’ compensation judge concludes that, based on the preponderance of the evidence, the answer is negative, the presumption will not apply. The judge rightly found that the claimant failed to meet his burden. 


 

What’s Hot in Workers’ Comp, Vol. 28, No. 7, July 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.

Firm Highlights

Thought Leadership

Congress Passes Financial Exploitation Prevention Act

On June 25, 2026, the House passed the Financial Exploitation Prevention Act of 2025 (“the Act”) by a vote of 414 to 2. The Act allows financial advisors and firms to delay suspicious transactions regarding the accounts of clients who are 65 or older, if they believe financial exploitation has occurred or is about to take place. With the advancement of technology and AI, the House’s overwhelming bipartisan passage of the Financial Exploitation Prevention Act represents an important step in strengthening the financial industry’s ability to combat the growing threat of elder financial exploitation. The Act recognizes what advisors have long known that financial professionals are often the first to detect suspicious behavior but have historically lacked clear legal authority to intervene before irreversible financial harm occurs. From the industry’s perspective, the bill accomplishes several important objectives, including the following: (1) Provides a practical “pause button” by allowing financial professionals to temporarily delay certain transaction requests when there is a reasonable belief that a senior or vulnerable adult is being financially exploited; (2) Empowers financial professionals to act by providing greater certainty that firms can act in good faith to protect clients without unnecessary legal risk; and (3) Strengthens investor protection without sacrificing client rights by allowing temporary delays based on a reasonable suspicion of exploitation, which is intended only to allow additional review and not to deny clients access to their money indefinitely. In sum, the Financial Exploitation Prevention Act will equip financial professionals with practical, carefully tailored tools to stop suspected financial exploitation before client assets are lost. By allowing firms to temporarily delay suspicious transactions under defined circumstances, Congress is recognizing the critical role advisors play as the first line of defense against increasingly sophisticated fraud schemes. The Act strikes an appropriate balance between protecting vulnerable investors and preserving individual financial autonomy, while reinforcing collaboration among advisors, families, and law enforcement to combat financial exploitation. The bill now awaits Senate action.

Thought Leadership

New Jersey Expands Family Leave Protections Effective July 17, 2026

On January 17, 2026, Governor Murphy signed into law legislation expanding the New Jersey Family Leave Act (NJFLA). Beginning July 17, 2026, significant amendments to the NJFLA will expand job-protected family leave to smaller businesses and more employees across the state. The new law broadens coverage by lowering the threshold for private employers from 30 employees to 15 employees, meaning many smaller businesses will now be subject to the NJFLA. Employees of state and local government agencies will continue to be covered regardless of the size of the employer. The amendments also make it easier for employees to qualify for leave. Under the revised law, an employee will be eligible after three months of employment and at least 250 hours worked during the preceding 12 months, replacing the previous requirement of 12 months of employment and 1,000 hours worked. Currently, New Jersey's Temporary Disability Insurance (TDI) and Family Leave Insurance (FLI) programs provide eligible employees with wage replacement while they are on leave but do not independently guarantee job protection. The recent amendments to the New Jersey Family Leave Act (NJFLA) expand these protections by extending job-protected leave to additional employees. Under the amended law, employees receiving TDI or FLI benefits may be entitled to return to the same position they held before taking leave, or to an equivalent position with the same seniority, status, pay, and benefits. Although the legislation also states that it does not expand or modify an employee's reinstatement rights under the NJFLA, the amendments appear to provide job protection to eligible employees receiving TDI or FLI benefits without requiring them to separately satisfy the eligibility requirements of the NJFLA or the federal Family and Medical Leave Act (FMLA). As a result, some employees may be entitled to longer periods of job-protected leave than were previously available under existing law. With these amendments, New Jersey continues to strengthen workplace protections by expanding access to job-protected family leave for eligible employees. These changes significantly expand access to job-protected family leave and may require employers to update their leave policies, employee handbooks, and HR practices. Notably, employers who were previously not required to administer NJFLA may need to amend their policies and/or create new protocols to come into compliance with the NJFLA. Failure to do so would prove costly, as the penalties for non-compliance are significant.

Thought Leadership

Mitigating Long-Tail Liability: Delaware Court Reaffirms Five-Year Workers’ Compensation Deadline

Williamson v. Donald F. Deaven, Inc., No. N25A-07-004 FWW, 2026 LX 252526 (Del. Super. Ct. June 2, 2026) Claimant was involved in a compensable industrial work accident on May 12, 1995, for a low back injury.  Following this, he received compensation for temporary total disability benefits from July 1996 to September 1996 and for sustaining a permanent impairment in 1997 and 1998. For the next 23 years, the claimant continued treatment and paid his own medical bills without submitting them to the employer’s insurer. In November 2021, the claimant filed a petition seeking payment for medical expenses, including prospective surgery and a resulting period of total disability. The employer moved to dismiss the petition, arguing it was barred by Delaware’s five-year statute of limitations (19 Del. C. § 2361(b)). Pursuant to 18 Del. C. § 3914, insurers must provide prompt written notice of the applicable statute of limitations to invoke the five-year deadline. Due to the age of the case, neither party had a comprehensive file of the claim and the Board had archived its file of the matter. The carrier’s computer system retained only bare information indicating that payments occurred and agreements and receipts were filed with the Board in 1997. While the claimant argued that the employer could not prove it provided the mandatory statutory notice, the Hearing Officer recovered the archived file, which contained two “Receipts for Compensation Paid” signed by the claimant. The receipts explicitly contained the required five-year limitation language, which the claimant testified to signing at the hearing. The claimant also attempted to introduce evidence of payments he claimed the employer made, which would have extended the statute of limitations. As a preliminary matter, the hearing officer excluded the testimony about the payments because the claimant did not produce them to the employer. The Board found in favor of the employer and dismissed the claimant’s petition as time-barred. The claimant appealed the Board’s decision, arguing that he never received adequate notice of the statute of limitations and that the hearing officer’s evidentiary ruling was an abuse of discretion. The Court held that the archived, signed receipts constituted substantial evidence that the insurer fulfilled its statutory notice requirements. Therefore, the claimant’s petition was time-barred under the statute of limitations provisions of 19 Del. C. § 2361(b). Furthermore, the Court reinforced strict procedural compliance: it rejected the claimant’s attempts to introduce evidence of payment on appeal, ruling the argument was waived for failure to preserve it while the matter was still before the Board. This recent ruling by the Court underscores the importance and necessity of robust data preservation and precise compliance with notice requirements. For risk managers, employers, and insurers, the decision highlights how tight administrative execution protects against catastrophic long-tail liability.

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.