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Legal Updates for Lawyers' Professional Liability

Game Over: Pennsylvania Supreme Court Denies Allocatur to Review “Monday Morning Quarterbacking” of Personal Injury Lawsuit

Presented by the Professional Liability Practice Group

March 9, 2021

by Dana A. Gittleman

On March 1, 2021, the Pennsylvania Supreme Court denied plaintiff Jibreel Townsend’s petition for allowance of appeal, which sought reconsideration of the Pennsylvania Superior Court’s decision in Townsend v. Spear Greenfield and Richman, P.C., et al., 240 A.3d 157 (Pa. Super. Aug. 13. 2020). This successful result, obtained by appellate attorney Carol Vanderwoude and professional liability attorneys Tim Ventura and Dana Gittleman, signaled the end of 3+ years of litigation arising from our client’s representation of Mr. Townsend for injuries sustained in an October 2011 motor vehicle accident.

In August 2020, the Pennsylvania Superior Court affirmed the Philadelphia County Court of Common Pleas’ dismissal of the plaintiff’s legal malpractice/negligence and fraud claims asserted against his counsel in the underlying personal injury action, purportedly due to the failure to sue a potential party that limited the applicable insurance coverage available to him. The plaintiff voluntarily and knowingly participated in the settlement of the underlying personal injury lawsuit, thus barring his subsequent legal malpractice action arising out of “frustration and dissatisfaction,” pursuant to Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick, 587 A.2d 1346 (Pa. 1991) (holding that a dissatisfied plaintiff may not sue his attorney following a settlement to which he agreed unless the plaintiff can show he was fraudulently induced to settle).

To be sure, the court concluded that the plaintiff voluntarily entered into the underlying settlement—with no indication that his attorneys failed to inform him of salient legal issues or the effects of settlement—and he was not fraudulently induced to do so in the absence of sound evidence and testimony to support this claim.

The Townsend decision reiterates the importance of being candid with clients when entering into settlement negotiations, including the consequences and effects of the decision to voluntarily settle as opposed to proceeding to trial. Further, the decision comports with existing Pennsylvania precedent, which supports insulating attorneys from legal malpractice claims arising out of “post-mortem” settlement value dissatisfaction, rather than provable negligence.

 

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.

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Commonwealth Court Holds That a Claimant Who Was Struck By a Car While Crossing the Street During an Unpaid Break Was In the Course and Scope of Employment

This case involved a claim petition filed by a claimant who sustained injuries after being struck by a vehicle while crossing the street in front of the employer’s premises. The employer denied the claim based on course and scope, as the accident occurred during one of two mandatory fifteen (15) minute breaks provided to the claimant. The claimant would punch out at the beginning of a break and punch back in when the break was over.  On the date of the incident, the claimant punched out and left the building to get lunch at a restaurant, which required her to cross the employer’s parking lot, and then a public street, where the injury occurred. The Workers Compensation Judge (WCJ) dismissed the petition, noting that that during the two mandatory fifteen-minute breaks per shift allowed by the employer, the claimant was free to leave the employer’s premises, and during breaks, permitted to engage in whatever activity she desired. The WCJ found that at the time of the accident, the claimant was on her own time, in the middle of the street, and going to get lunch.   The claimant filed an appeal with the Worker’s Compensation Appeal Board (Board), and the Board reversed.  According to the Board, the claimant’s location was still on the employer’s premises, as the claimant was taking her customary route while using a reasonable ingress/egress from the employer.  Further, the Board found that the “Personal Comfort Doctrine” applied, as the claimant was on a momentary departure to take care of her personal comfort, within the window of time she was allotted for her break.  The Board remanded the case, and a WCJ granted the claim petition.  The Board affirmed, and the employer appealed to the Commonwealth Court. Before the Court, the employer argued that the claimant was not in the course and scope of her employment, because the injury did not occur on its premises, and the claimant was outside the bounds of the Personal Comfort Doctrine. The Court, however, rejected these arguments, and dismissed the employer’s appeal.  The Court noted that the break given to the claimant was so cursory, when she set out to relieve her hunger for her own personal comfort,  she remained in the course of her employment when she sustained her injuries.  A Petition for Allowance of Appeal in the Supreme Court has been filed by the Employer, Giant Eagle.

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New Jersey Workers’ Compensation Legislation Updates

Since June 1, 2026, there have been no new New Jersey workers’ compensation related cases from the Appellate or Supreme Courts. As such, below will highlight any new legislative updates since February. A1023 | S3984 - Medical Use of Cannabis Under Certain Circumstances This requires workers’ compensation, PIP, and health insurance coverage for the medical use of cannabis under certain circumstances. It was introduced on January 13, 2026 and referred to the Assembly Financial Institutions and Insurance Committee. It was also introduced on March 19, 2026 and referred to the Senate Commerce Committee. A1045  - Certain Injuries to Volunteer and Professional Public Safety and Law Enforcement Personnel This revises workers’ compensation coverage for certain injuries to volunteer and professional public safety and law enforcement personnel. It was introduced on January 13, 2026 and referred to the Assembly Labor Committee. A1384 | S2757 - Reduce Statute of Limitations in Medical Fee Disputes This reduces statute of limitations from six years to two years in medical fee disputes in workers’ compensation matters. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. A1870 | S1379 - Workers' Compensation Benefits For Certain Workers Due to September 11, 2001 Terrorist Attacks This provides workers’ compensation benefits for certain public safety workers who developed illness or injury as result of responding to September 11, 2001 terrorist attacks. It was introduced on January 13, 2026 and referred to the Assembly Labor Committee. It was also introduced on the same day and referred to the Senate Labor Committee. On February 5, 2026, it was reported from the Senate Committee, 2nd Reading, and referred to the Senate Budget and Appropriations Committee. A2779 | S1521 - Excludes Certain Illegal Aliens This excludes certain illegal aliens from workers’ compensation and temporary disability benefits. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. A2792 | S1555 -  Prevent Intoxicated Employees from Workers’ Compensation This prevents intoxicated employees from receiving workers’ compensation. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. A3167 | S2372 - Workers’ Compensation Insurance Requirements for Certain Corporations and Partnerships This concerns workers’ compensation insurance requirements for certain corporations and partnerships. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. A3548 | S3571 – Maximum Benefits for Certain Volunteers This provides certain volunteer and other workers with maximum compensation benefit for workers' compensation claim regardless of outside employment. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. On March 2, 2026, it was reported from the Senate Committee, 2nd Reading, and referred to the Senate Budget and Appropriations Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. On May 7, 2026, it was reported and referred to Assembly State and Local Government Committee. A3724 - Personal Liability to Employer Officers for Failure to Pay for Coverage This provides personal liability for owner, executive officer, or executive director of employer for failure to pay for workers' compensation coverage. It was introduced on January 13, 2026 and referred to the Assembly Labor Committee. On May 7, 2026, it was reported and referred to Assembly Judiciary Committee. A4617  - Certain Workers' Compensation Supplemental Benefits and Funding Method This concerns certain workers' compensation supplemental benefits and funding method. For a permanently and totally disabled worker or surviving dependents after December 31, 1979, with some exceptions, this bill provides for an annual cost of living adjustment in the weekly workers’ compensation benefit rate. It was introduced on March 10, 2026 and referred to the Assembly Labor Committee. S241 - Inclusion in Database of Appointed Officials This requires that workers’ compensation judges and administrative law judges be included in database of appointed officials. It was introduced on January 13, 2026 to the Senate, Referred to Senate State Government, Wagering, Tourism & Historic Preservation Committee. S2290 -  Mandatory Retirement Age This increases statutory mandatory retirement age for Supreme Court Justices, Superior Court Judges, Tax Court Judges, Administrative Law Judges, and Workers’ Compensation Judges from 70 to 72. It was introduced on January 13, 2026 and referred to the Senate Judiciary Committee. S3144 - Testimony in Workers’ Compensation This concerns submission of testimony in workers’ compensation claims. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. S3342  - Increase Mandatory Retirement Age This increases statutory mandatory retirement age for Supreme Court Justices, Superior Court Judges, Tax Court Judges, Administrative Law Judges, and Workers’ Compensation Judges from 70 to 75. It was introduced on February 5, 2026 and referred to the Senate Judiciary Committee.

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What’s Hot in Workers’ Comp - News and Results*

RESULTS Lela Eke (Roseland) secured a significant victory in a catastrophic injury workers’ compensation matter involving an above-knee amputation and approximately $2 million in past medical bills. After more than a year of litigation over Motions for Medical and Temporary Benefits and a subsequent Motion to Compel/Payment of Bills, the claimant sought an order requiring payment of medical expenses for which certain providers had intervened and were pursuing their own claims through separate counsel. We argued that the intervenors’ bills were not properly before the court and should not be included in the MMT Order. The court agreed, finding that the bills were outside the scope of the MMT Order and further determining that the employer had complied with the other applicable requirements. As a result, the claimant’s counsel was not entitled to a potential 25% fee on the approximately $2 million in intervenors’ medical bills, preserving up to approximately $500,000 in potential savings. The ruling also preserved the client’s ability to negotiate the outstanding medical bills rather than requiring their immediate payment. Andrew Maffett (Harrisburg) obtained a favorable result in a Pennsylvania workers’ compensation matter. The matter involved the employer’s petitions to suspend and terminate workers’ compensation benefits arising from a July 22, 2024 work injury. With respect to the suspension petition, the employer presented fact-witness testimony that modified-duty work was available within the claimant’s treating physician’s restrictions. The judge credited that testimony and granted the suspension petition effective May 19, 2025. With respect to the termination petition, the employer presented testimony from an expert that the claimant had fully recovered from the work injury. The judge credited that testimony and granted the termination petition effective June 5, 2025. As a result, the employer was permitted to discontinue indemnity and medical benefits related to the July 22, 2024 injury and pursue supersedeas fund reimbursement for wage loss and medical benefits paid during the litigation. Perry Merlo (Harrisburg) secured a favorable decision in a Pennsylvania workers’ compensation matter involving a dispute over wage-loss benefits. The parties stipulated that the claimant had sustained a work injury but left unresolved whether he was entitled to indemnity benefits for the period from June 2, 2025, through November 17, 2025. The claimant testified that the employer had failed to accommodate his work restrictions during that time. In response, we presented testimony from an employer fact witness establishing that the claimant had been provided work within his restrictions without any loss of wages. The judge credited the employer’s witness over the claimant and denied the claim for approximately five months of wage-loss benefits, resulting in a favorable decision for the employer. William Murphy (Roseland) obtained a favorable resolution in a New Jersey workers’ compensation matter pending in Newark. The claim involved alleged injuries to the lower back, bilateral knees, and bilateral hands. We filed a motion seeking dismissal as to the carrier, arguing that coverage was not in effect on the date of the alleged accident. The judge granted the motion and entered an order dismissing the carrier from the case. William Murphy (Roseland) obtained a dismissal in a New Jersey workers’ compensation matter. The claim involved allegations of occupational exposure resulting in orthopedic, neurologic, and pulmonary disabilities. After numerous delays by the claimant’s counsel in prosecuting the matter, we successfully obtained a dismissal for lack of prosecution. The dismissal resulted in a complete resolution of the claim. William Murphy (Roseland) successfully dismissed a New Jersey workers’ compensation claim involving allegations of a decade-long occupational exposure. The claimant alleged orthopedic, neurologic, and pulmonary disabilities arising from the exposure. After the claimant’s counsel failed to take the necessary steps to advance the matter, we pursued dismissal for lack of prosecution. The court granted the request, bringing the claim to a complete and favorable conclusion. William Murphy (Roseland) successfully secured the dismissal with prejudice of two New Jersey workers’ compensation medical provider applications seeking a combined $71,534.47. The applications arose from medical treatment allegedly related to a September 11, 2021 workplace injury. We challenged the claims on jurisdictional grounds, arguing that the underlying accident occurred in New York and lacked a sufficient connection to New Jersey. Despite the two matters being assigned to different judges of compensation, both judges agreed with the jurisdictional argument and entered orders dismissing the respective claims with prejudice on July 23 and 24, 2026. The result eliminated $71,534.47 in claimed exposure. Tony Natale (King of Prussia) obtained a defense verdict in a workers' compensation case in Pennsylvania. The claimant sustained a work-related injury in the form of a bilateral knee strain during the course and scope of employment. She continued to treat for these injuries without cessation. She originally refused a job offer to return to work and continued treatment. A board-certified orthopedic surgeon who specializes in knee injuries examined her and found that despite the varied and somewhat bizarre subjective pain complaints, there were no objective corroborative findings to support ongoing injury or disability. This medical expert testimony was proffered and accepted by the court as credible, resulting in a full defense verdict. Michele Punturi (Philadelphia) successfully prosecuted a Termination Petition involving a 71-year-old certified nursing assistant who suffered a work injury to the lumbar spine with a pre-existing back condition, the latter of which the claimant denied. The defense medical expert, a Board-certified orthopedic surgeon with a specialty in surgical treatment of spinal injuries, examined the claimant and his opinions were found competent, credible and persuasive supporting a full recovery based upon a comprehensive physical examination, review of medical records and x-rays of the lumbar spine as well as three MRIs of the lumbar spine in 2023, 2024 and 2025 revealing no post-traumatic findings nor an aggravation of her pre-existing lumbar condition. Michele demonstrated claimant’s expert lacked the expertise and experience and his focus was on pain management. The judge rejected claimant’s medical expert as not credible even though he attempted to support an aggravation of her underlying degenerative disc disease. The judge further rejected claimant’s testimony given her efforts to unequivocally deny prior back injury going as far as to say it would be a lie to say she had a prior low back injury despite the medical records that clearly demonstrated prior treatment along with medication for her lumbar spine. Also, the demonstration of her sporadic treatment further supported a lack of credibility as did favorable surveillance showing her active.   *Prior Results Do Not Guarantee a Similar Outcome NEWS Judd Woytek (King of Prussia) is speaking at the National Comp conference in Las Vegas in September. He joins a group of panelists to present “Older, Wiser, But Costlier to Heal: What an Aging Workforce Means for Employers and for the Industry,” a discussion focused on the challenges employers face in balancing safety, compliance, and productivity as the workforce continues to age. Judd and his co-presenters will address proactive strategies to reduce workplace risk, support older employees, navigate age-discrimination and workers’ compensation issues, and build a safer, more resilient workforce. For more information, visit National Comp. Conference and Trade Show.