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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

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

U.S. Supreme Court Decides Key Issue Regarding Interstate Freight Broker Liability

Freight brokers are intermediaries.  They connect shippers of goods with trucking companies that transport those goods.  Freight brokers match a load of freight with a trucking company and oversee the logistics of the transportation. For a number of years there has been a division among the Federal Circuits regarding the potential liability of freight brokers when the trucking companies that they retain for interstate loads are involved in accidents.  At the center of this division was the Federal Aviation Administration Authorization Act of 1994 (FAAAA).  Some Federal Circuit Courts have held that state law negligent hiring claims against freight brokers were preempted by the FAAAA .  Other Federal Circuits Courts have held that even if preemption applied, the “safety exception” in the FAAAA saved state law negligent hiring claims from federal preemption.  On May 14, 2026, the U.S. Supreme Court addressed the conflict in Montgomery v. Caribe Transport II, LLC, et al, No24-1238. In that case freight broker C.H. Robinson selected Caribe Transport to haul an interstate load. The commercial truck driver employed by Caribe Transport allegedly caused an accident and the plaintiff, Montgomery, was seriously injured. Montgomery brought an action against the driver, Caribe Transport and C.H. Robinson. The allegation against C.H. Robinson was that it negligently retained Caribe Transport when it knew, or should have known, that it was an unsafe company. The Seventh Circuit Court of Appeals held that Montgomery’s claims against C.H. Robinson were preempted by the FAAAA. The plaintiff appealed to the U.S. Supreme Court.  The U.S. Supreme Court’s decision focused primarily on the safety exception in the FAAAA.  That provision provides that the FAAAA preemption “…shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” C.H. Robinson argued, as freight brokers historically have, that their function was not “with respect to motor vehicles” because they do not own trucks or employ drivers. They are merely intermediaries, connecting entities who need freight moved with entities who can do that job. Therefore, C.H. Robinson argued that preemption applied, not the safety exception. The U.S. Supreme Court did not accept that argument. The Court focused on the meaning of the phrase “with respect to” in the safety exception. The Court held that it means “referring to”, “concerning” or “regarding”. Therefore, writing for a unanimous Court, Justice Barrett concluded that “[r]equiring C.H. Robinson to exercise ordinary care in selecting a carrier therefore “concerns” motor vehicles—most obviously, the trucks that will transport the goods. So, Montgomery’s negligent-hiring claim falls within the FAAAA’s safety exception, which saves it from preemption.” Justice Kavanaugh, in his concurring opinion, noted the effect this ruling may have on freight brokers and their insurers throughout the country: Importantly, the Court's decision today should not be read to mean that brokers will routinely be subject to state tort liability in the wake of truck accidents. As even plaintiff's counsel stressed, brokers should be able to successfully defend against state tort suits if the brokers have acted reasonably and arranged transportation with reputable trucking companies. Tr. of Oral Arg. 27-29. In plaintiff's counsel's words, the brokers "just have to hire carriers that actually have a reasonable policy," and "the broker is not going to have a problem if it's asking the hard questions of the carrier." Id., at 42, 45. In addition, the proximate-cause requirement in typical state tort law should help protect brokers from excessive liability. Id., at 25. That said, the brokers rightly caution against naivete. In the real world, as the brokers forcefully respond, state tort law can be unpredictable, and the costs to brokers of litigation and insurance may be significant even when brokers prevail in lawsuits. Moreover, the costs of litigation and insurance, as well as the costs of brokers' conducting more substantial inquiries into trucking companies, will cascade through the economy and be paid in part by American consumers in the form of higher prices. The concerns expressed by the brokers are legitimate and weighty. The key point here is that freight brokers can no longer claim they are protected from negligent retention claims by the FAAAA (in cases involving interstate transportation). The challenge will be to determine what is considered ”reasonable efforts” used by brokers when retaining transportation companies. 

Thought Leadership

PA Middle District Dismisses Claims Against School District and its Superintendent, Principal, Special Education Director, and Classroom Teacher

A five-year-old special education student was enrolled in the Wyoming Valley West School District and attended the State Street Elementary School during the 2024-2025 school year. The student refused to clean up classroom toys at dismissal. When his teacher allegedly grabbed him by the wrist to walk him back to his seat, the student dropped to the floor and began crying. The teacher then allegedly grabbed the student by the ankle and dragged him across the floor. Following an investigation, criminal charges were not advanced by the county DA, and the school permitted the teacher to return to the classroom. The student’s parents sued, lodging thirteen legal counts under both state and federal law, which sought monetary damages from the teacher, the school district, the superintendent, the principal, and the director of special education. The plaintiff’s 42 USC 1983 claims were dismissed as to the school district for failure to allege a policy or custom violation, and the failure to alleged deliberate indifference in the failure-to-train context. As to the superintendent, building principal, and special education director, the Section 1983 claims were also dismissed for failure to allege personal involvement on the part of the individuals. Regarding an equal protection claim asserted against all defendants, the motion to dismiss was also granted for a failure to advance a plausible equal protection claim, holding that “plaintiffs' single-act allegations do not include a factual basis to even infer that the act was motivated by discriminatory animus rather than some other non-discriminatory impulse.” The court further dismissed the plaintiff’s negligence-based claims including negligence against the teacher and district administrators, NIED, and vicarious liability under the Political Subdivision Tort Claims Act (PSTCA). The federal claims under the IDEA, Section 504, and the ADA were also dismissed in various respects. The IDEA claim was dismissed against all defendants with prejudice for failure to exhaust administrative remedies. The Section 504 claims against the individual defendants were also dismissed with prejudice, as districts, not individuals, are the recipients of federal funds under Section 504. However, the Section 504 and ADA claims were dismissed without prejudice as to defendant Wyoming Valley West, and the plaintiff was permitted leave to amend.