.

What's Hot in Workers' Comp

The New Jersey Appellate Division affirms two decisions: A win for each side.

Pilone v. Cnty. of Middlesex, Docket No. A-1676-19, (Appellate Division, Decided Mar. 15, 2021) and Soto v. Exclusive Coachworks, Inc., Docket No. A-2331-19, (Appellate Division, Decided Apr. 12, 2021)

June 1, 2021

by Kiara K. Hartwell

In Pilone v. Cnty. of Middlesex, the petitioner appealed the dismissal of her workers’ compensation claim. The Appellate Division affirmed the Judge of Compensation’s decision, finding her injury was not compensable based on the premises rule. The petitioner, an assistant prosecutor, had an office located a block away from the prosecutor’s main office. The petitioner regularly walked between these two offices. On March 21, 2017, she met a colleague in front of the main office to walk to a donut shop to discuss a case and meeting with a victim-witness later that day. She fell on the sidewalk and was taken by ambulance to a hospital.

She filed a workers’ compensation claim, and the respondent confirmed she was an employee, but that her injury did not arise out of and in the course of employment. In a bifurcated trial, the judge first addressed if the injury was compensable. The petitioner argued it was common practice to meet colleagues outside the office to discuss cases and, in this case, she intended to grab some coffee, and she testified that she “probably” brought her file to discuss with her colleague. Her colleague testified they were meeting to discuss how to approach a victim-witness.

In a written decision, the judge found the petitioner’s injury was not compensable as it did not arise out of and in the course of employment. The petitioner appealed, contending the judge should have recognize the special mission exception to the “premises rule.”

The Appellate Division reviewed de novo as the petitioner only challenged the Judge of Compensation’s legal conclusions. The premises rule limits an employer’s liability to areas that the employer controls, such as by ownership, maintenance or exclusive use. It is a fact-sensitive inquiry to determine if an injury is compensable during ingress or egress to work. The petitioner argued her frequent travel between the offices, the courts, etc. was required by her job. However, in rejecting her argument, the Appellate Division noted the respondent had no control over the sidewalk where the petitioner fell. In addition, the Appellate Division pointed out the petitioner failed to prove the respondent directed her to have her meeting in the donut shop. The Appellate Division declined to contradict public policy that an employer is only liable for injuries that occur in employer-controlled areas.

In Soto v. Exclusive Coachworks, Inc., the respondent appealed an order by a Judge of Compensation, requiring it to pay for the petitioner’s knee replacement and temporary disability benefits. The Appellate Division affirmed, confirming the judge’s finding of a causal relationship between the work accident and the need for treatment based on Dr. Horowitz’s opinions.

On October 3, 2017, the petitioner was struck by a hammer on the inside of his left knee while employed by the respondent as an auto repairman. He saw Dr. Innella, and after obtaining an MRI, Dr. Innella recommended an arthroscopic procedure. The workers’ compensation carrier had the petitioner evaluated by two orthopedists, Dr. Nordstrom and Dr. Colizza. Both agreed arthroscopic surgery was necessary and causally related to the October 3, 2017, incident. Dr. Colizza performed the arthroscopic surgery in July 2018. The petitioner’s condition did not improve, and Dr. Colizza initially opined the work injury and surgery “accelerated” the need for a total knee replacement.

However, after review of prior medical records, he changed his opinion. The petitioner had undergone left knee surgery after a 1995 incident. He also suffered another injury to his left knee in 2009 as a result of a motor vehicle accident and had undergone an arthroscopy and partial meniscectomies in 2010. The petitioner saw Dr. Innella for a second time and in 2011, he opined the petitioner “may need a knee replacement.” After 2011, the petitioner had no treatment to his left knee until the October 3, 2017, incident.

In April 2019, a motion for medical and temporary benefits was filed, seeking the knee replacement surgery and temporary disability benefits. During the four-day trial, testimony was taken of the petitioner and two experts. On behalf of the petitioner, Dr. Horowitz testified that he evaluated him in January 2018 and February 2019. He stated that Dr. Innella’s opinion that the petitioner “may need a knee replacement” was not a definitive diagnosis. He also found the petitioner’s condition could have been aggravated in the nine months between the injury and surgery. After reviewing the records, he opined there was a causal relationship between the injury and need for total knee replacement.

On the other hand, Dr. Colizza testified for the respondent, noting his opinion changed on causation after reviewing prior medical records. Specifically, he opined that the petitioner’s need for the knee replacement was a result of his osteoarthritis and pre-existing injuries of 1995 and 2009. Afterwards, the judge issued an order for the respondent to provide the knee replacement and temporary disability benefits from the date of the surgery. In doing so, the judge noted the petitioner had an arthritic left knee at the time of the work incident, but that the employer takes an employee as he/she is found. The respondent acknowledged the 2017 incident resulted in a work injury and that its expert, Dr. Colizza, confirmed the nine months without treatment and surgery possibly aggravated the osteoarthritis. In finding Dr. Horowitz’s opinion more credible, the judge reasoned it was probable the work injury and nine months without treatment accelerated the need for the total knee replacement, though it was not the sole reason.

The respondent appealed, contending the judge should have weighed Dr. Colizza’s opinions more, as he was the treating doctor, rather than Dr. Horowitz’s. The Appellate Division disagreed, noting the Workers’ Compensation Judge is in the best position to weigh the credibility of experts as the trier of fact and the decision was well-supported by the record. In this case, both experts agreed the petitioner needed a total knee replacement; that as a result of the 2017 incident, he required arthroscopic surgery, at a minimum; and his underlying arthritis was exacerbated by the 2017 incident. The Appellate Division found no basis to disturb the judge’s finding that Dr. Horowitz was more credible than Dr. Colizza.

 

What’s Hot in Workers’ Comp 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. 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 © 2021 Marshall Dennehey Warner Coleman & Goggin, 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

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

Thought Leadership

Pennsylvania Supreme Court to Review Whether Legal Malpractice Claims May Be Recast as Breach of Contract Claims

The Pennsylvania Supreme Court recently granted allowance of appeal to consider whether a plaintiff may pursue a breach of contract claim against an attorney based on allegations that the attorney failed to provide competent legal services. The issue is significant in professional liability litigation because it concerns whether a plaintiff may avoid the statute of limitations applicable to professional negligence claims by characterizing the alleged misconduct as a breach of contract. Antoine Poteat retained attorneys Gary Asteak and Nino V. Tinari to represent him in a criminal matter. After his conviction was subsequently overturned through a Post Conviction Relief Act proceeding, Poteat filed suit against his former attorneys alleging that they breached their retainer agreements by failing to provide competent legal services. The attorneys argued that the claims sounded in professional negligence, rather than breach of contract, and were therefore time-barred. The trial court dismissed Poteat’s complaint, but the Superior Court, sitting en banc, reversed. The Superior Court held that the gist-of-the-action doctrine did not bar Poteat’s breach of contract claim because the alleged failure to provide competent legal services could constitute a breach of the parties’ agreement. The Court further held that a legal-services agreement contains an implied duty requiring an attorney to provide competent legal services, even where the agreement does not contain an express provision requiring such services. The Pennsylvania Supreme Court granted review in July 2026 and will consider whether the Superior Court’s decision conflicts with Pennsylvania precedent distinguishing contract and tort claims, including Bruno v. Erie Insurance Co. The Supreme Court will also address whether a plaintiff may maintain a breach of contract claim based on an implied duty to provide competent legal services without identifying a specific contractual provision that was breached. The Supreme Court’s decision could have significant implications for professional liability litigation in Pennsylvania, particularly where plaintiffs seek to characterize claims arising from alleged professional negligence as contractual claims.

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

Thought Leadership

Two Tracks, No Preclusion: Ohio Supreme Court Preserves Separate Damages Claims After Chapter 2506 Appeals

The Supreme Court of Ohio has clarified that an administrative appeal under Ohio Revised Code Chapter 2506 does not bar a separate action for damages and declaratory relief that could not have been pursued in the administrative appeal. The Ohio Supreme Court considered Sheetz, Inc. v. Centerville (2026-Ohio-3531) as a result of a certified question from the Southern District of Ohio. The question was whether Sheetz, the gas station/convenience store brand, was barred from seeking damages in a separate action since damages were not sought in their administrative appeal. Ultimately, the Ohio Supreme Court ruled that res judicata does not bar a separate action for damages after ruling on an administrative appeal because R.C. Chapter 2506 is limited to judicial review and cannot grant affirmative relief. The case arose after Centerville’s city council rejected a site plan proposed by Sheetz, Inc. that had received unanimous approval from the City’s planning commission. Sheetz filed an administrative appeal pursuant to R.C. 2506 in the Montgomery County Court of Common Pleas, and two months later filed a complaint for damages and declaratory relief under 42 USC § 1983 as a takings action with the city, city council, and other objectors as improper takings and a violation of due process, as well as interference with business and contractual relationship. The city and city council removed the § 1983 action for damages to federal court. Montgomery County Court of Common Pleas reversed the city council’s denial, and allowed the Sheetz project to move forward. Upon that ruling, the federal court issued a show-cause order questioning whether the § 1983 action was barred by the doctrine of res judicata via claim preclusion (which includes all theories of recovery).  Sheetz argued that Ohio courts of common pleas do not have authority to award damages or declaratory relief as party of the R.C. Ch. 2506 appeal, therefore res judicata could not be triggered to apply to the § 1983 action. Additionally, Sheetz moved to certify the issue to the Ohio Supreme Court, citing differing results between the second and sixth districts on this same issue. Centerville approached the question, not from a claim preclusion standpoint, but from the holding in Grava v. Parkman, Twp which states that a final judgment rendered on the merits bars all subsequent action based on the same transaction or occurrence.  In yet another approach, an objector argued that claim preclusion was satisfied because Sheetz could have raised its damages claims in the administrative appeal – Sheetz disagrees. In their analysis, the Supreme Court of Ohio broke down the elements of a claim preclusion analysis: 1) a prior final, valid decision on the merits by a court of competent jurisdiction; (2) a second action involving the same parties, or their privies, as the first; (3) a second action raising claims that were or could have been litigated in the first action; and (4) a second action arising out of the transaction or occurrence that was the subject matter of the previous action. The Court held that R.C. Ch. 2506 does not permit a party to argue damages as R.C. Ch. 2506 limits the common pleas jurisdiction as if it were sitting on appeal, and therefore can only affirm, reverse, vacate, or modify the appealed order, or can remand the case to the administrative body. Further, the Court held that Grava’s conclusion that a final judgment precludes additional litigation for different relief is inapplicable under this fact pattern because it was meant only to apply to those matters in which the plaintiff brings the exact same case twice, but for new relief. The Court found Grava was inapplicable because Sheetz could have requested damages or declaratory relief in the R.C. 2506 appeal. Therefore, Grava would be nothing more than dicta if it even did apply. Going further, the Ohio Supreme Court disavowed Sixth Circuit precedent which, in reliance on Grava and other district court decisions, permitted an owner to seeking relief under 42 U.S.C. § 1983 alongside an administrative appeal. See Moore v Hiram Twp., 988 F.3d 353 (6th Cir.2021). The Ohio Supreme Court found that the Sixth Circuit had disregarded a critical decision in Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 1993-Ohio-115, which clearly held that a R.C. Ch. 2506 appeal cannot be combined with a complaint seeking other claims for relief. Id. at ¶ 11. To that end, the Ohio Supreme Court has determined that the decisions Moore relied on (outside of Grava) are no longer good law, and that Moore was wrongly decided. The decision draws a clear procedural boundary: Chapter 2506 provides judicial review of an administrative decision, not a forum for independent claims seeking affirmative relief. Although Grava may place claims arising from a single transaction within the potential scope of claim preclusion, those claims are not barred unless the complete claim-preclusion test is satisfied. Because Sheetz could not have pursued damages or declaratory relief in its Chapter 2506 appeal, the separate action was not precluded. The remaining question for practitioners looking to apply or defend against this exception is when does the statute of limitations begin to run on damages and declaratory relief claims related to an administrative decision on appeal? A takings action in federal court has a 2-year statute of limitations, or as a state claim, 4 years (like the other tortious claims raised therein). Correlating this case with others, an administrative appeal will not likely toll the statute of limitations on claims based on a final decision by a municipal authority. Therefore, practitioners should look for these cases to be brought simultaneously.

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

Thought Leadership

The Search-Incident-to-Arrest Doctrine Does Not License Strip Searches

In Beatty v. Gardner, No. 25-2860 (3d Cir. Sept. 16, 2026), Kyle Beatty sued police officers Clinton Gardner and Calvin Irvin under 42 U.S.C. § 1983 after they stopped, arrested, and searched him three times during a drug investigation in Williamsport, Pennsylvania. The officers initially smelled marijuana coming from the car in which Beatty was sitting and observed marijuana residue, giving them probable cause to arrest him. Beatty consented to the first pat-down, and the second search was conducted incident to his lawful arrest; neither search uncovered weapons or contraband. The officers then transported Beatty to the police station solely to strip-search him, but the strip search also revealed nothing. The District Court granted the officers summary judgment, concluding that the initial stop, arrest, and first two searches were reasonable and that qualified immunity protected the officers from liability for the strip search. The Third Circuit affirmed, but held that the strip search itself violated the Fourth Amendment. The court concluded that the search-incident-to-arrest doctrine does not automatically permit officers to strip-search an arrestee outside the jail or prison setting. Because strip searches are highly intrusive and the traditional justifications for searches incident to arrest (officer safety and preservation of evidence) did not justify the search of Beatty, the officers generally needed either the arrestee’s consent, exigent circumstances, or a warrant supported by probable cause to believe that a search beneath the clothing would reveal weapons, contraband, or evidence. Here, the officers had none of those justifications. Nevertheless, the court held that qualified immunity barred damages liability because, at the time of the search, the right against a warrantless strip search of an arrestee outside the institutional setting was not clearly established by Supreme Court or Third Circuit precedent. The court likewise upheld qualified immunity on Beatty’s First Amendment retaliation claim and affirmed summary judgment for the officers.

Marshall Dennehey Shareholders Recognized as Florida Trend Legal Elite Notable Women Leaders in Law

News

Marshall Dennehey Shareholders Recognized as Florida Trend Legal Elite Notable Women Leaders in Law

Event

CLM 2026 Focus Conference

Allison joins three insurance industry leaders to discuss how cyber coverage disputes, the growing impact of social inflation on bodily injury claim valuation, and the use of artificial intelligence are reshaping the bad faith landscape. The panel will examine emerging sources of extra-contractual exposure, including evolving cyber insurance coverage issues and the challenges of accurately valuing bodily injury claims. Practical approaches to claim evaluation using AI, along with defense strategies designed to help prevent or successfully defend against bad faith litigation, will also be addressed. 

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage Case

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

News

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department