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What's Hot in Workers' Comp

Court reverses Appeal Board ruling on an entitlement to reinstate benefits as of date claimant returned LIBC-760 form to employer, as benefits were in suspension status because of a judge’s prior decision, not for claimant’s failure to return the form.

Kenneth P. Marinack v. City of Pittsburgh (WCAB), et al.; No. 1161 C.D. 2022, No. 1163 C.D. 2022; filed July 12, 2024; Judge McCullough

August 1, 2024

by Francis X. Wickersham

This case involves multiple intertwined rounds of litigation. The claimant was a firefighter who sustained injuries in May 2004, when he fell in a stairwell while pulling down a ceiling in a burning building. The employer issued a Notice of Compensation Payable (NCP) for a left shoulder rotator cuff tear and aggravation of degenerative disc disease in the low back. 

In 2008, the employer filed a petition to suspend benefits as of September 16, 2008, alleging the claimant had retired and voluntarily removed himself from the workforce. The petition was granted by the workers’ compensation judge, but the Appeal Board reversed on appeal, concluding that evidence showed the employer had fired the claimant. 

The Commonwealth Court affirmed, and the employer filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court. That court had just decided the case of City of Pittsburgh v. WCAB (Robinson II), 67 A.3d 1194 (Pa. 2013), which established a new framework for voluntary withdrawal from the workforce cases. Based on that decision, the case was ultimately remanded to the workers’ compensation judge to make findings regarding the claimant’s separation from the workforce. This time, the judge dismissed the suspension petition, and the Board affirmed, as did the Commonwealth Court.

Meanwhile, in 2010, the employer filed another suspension petition, alleging the claimant had been self-employed as a handyman since his injury. The claimant also filed a review petition, alleging an incorrect description of injury and seeking to add the neck from a 2009 motor vehicle accident that caused “increased” neck problems and increased back problems, leading to low back surgery. 

In litigation before the judge, the employer offered forms LIBC-750 and 760 completed by the claimant. LIBC forms from January 2011 reflected earnings from May to December 2009, but forms thereafter were inconsistent as to earnings during this period. Although the claimant testified that he did not work after December 2009, financial records introduced by the employer suggested otherwise, and the judge suspended the claimant’s benefits as of June 2009. According to the judge, a suspension of benefits was fully justified as the claimant was not credible as to providing information regarding his self-employment, as directed by the judge. The judge also dismissed the claimant’s review petition, finding the evidence insufficient and noting that a report from low back surgery performed in March of 2011 did not address causation. The decision was affirmed on appeal to the Appeal Board and the Commonwealth Court.

Then, in 2016, the claimant filed a reinstatement petition, alleging a worsening of his condition as of March 17, 2011, the date he underwent low back surgery. At a hearing before the judge in connection with this petition, the claimant gave employer’s counsel a completed LIBC-760 form dated June 22, 2018, indicating that he was not currently employed or self-employed and had been self-employed from May 1, 2009, to December 1, 2009. The judge denied claimant’s reinstatement petition on the basis that it had already been addressed by the judge in the prior decision and was, therefore, barred by res judicata and/or collateral estoppel. However, the judge also found that the claimant met the requirement of reporting information, via the LIBC-760 form presented to employer’s counsel at the hearing, as of November 20, 2018. The Board affirmed the decision on appeal. However, it remanded the case to the judge for findings as to whether benefits should be reinstated as of November 20, 2018, based on the claimant’s production of the LIBC-760 form on that date. On remand, the judge ordered the reinstatement. The Board affirmed on appeal. 

The Commonwealth Court affirmed the Board relative to the claimant’s request for reinstatement of benefits as of March 17, 2011, agreeing that res judicata barred his claim. According to the court, the claimant was well aware of the worsening of his low back injury during the prior proceeding and, therefore, should have litigated it during that time. However, the court reversed the Board’s decision reinstating the claimant’s benefits on the date that the LIBC-760 form was returned. The court noted that in the most recent round of litigation, the claimant never asserted that his benefits should be reinstated because he returned the LIBC form, and he never argued that the return of the form cured the suspension. According to the court, in the prior case, the judge found that a suspension of benefits was justified because he did not think the claimant was telling the truth about his earnings during the relevant period, and the return of the form nine years later, with the same information previously rejected by the judge, did not cure anything. 


 

What’s Hot in Workers’ Comp, Vol. 28, No. 8, August 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.

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

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.