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What's Hot in Workers' Comp

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

What’s Hot in Workers’ Comp, Vol. 29, No. 5, May 2025

May 1, 2025

NEWS

Congratulations to A. Judd Woytek, shareholder in our King of Prussia office, on being selected among the “Top Lawyers of the Lehigh Valley” by The Morning Call newspaper. Judd was recognized for Workers’ Compensation litigation.

Michael Duffy (King of Prussia) is presenting as part of PBI and PBA Workers’ Compensation Law Section “Tough Problems in Workers’ Compensation 2025” on June 12. Designed specifically by and for the experienced workers’ compensation practitioner, this webcast highlights select challenges in workers’ compensation practice and offers techniques for managing them. Developments, practices, strategies, and preferences are discussed by your colleagues, your opponents, and judges to help you avoid making mistakes that could negatively affect your client’s claim. Delve into best practices for overcoming obstacles during case preparation and presentation. Mike is presenting as part of a panel (another attorney and a judge) on “Surveillance and Using Social Media to Win Your Case.” More info is here.

RESULTS*

Michael McMaster (Philadelphia, PA):

  • Successfully defended a Claim Petition involving a claimant installing a large garage door in a warehouse when the door fell and struck his leg, later requiring an amputation. The claimant alleged both physical and severe psychological injuries. The claimant was the 100% owner of the company, and when he purchased workers’ compensation insurance, he signed an acknowledgement that as the owner he would not be considered an “employee” under the Act. At the first hearing, Mike moved to bifurcate the matter for a decision on whether the claimant was covered under the Act. The workers’ compensation judge granted this motion. At the next hearing, Mike argued that the claimant was not an employee under the Act and, therefore, not entitled to receive any benefits. Mike submitted both the original application for insurance, where the claimant signed the acknowledgement, and a copy of the policy that was effective at the time of the injury, which included a form stating that the claimant had previously agreed to not be considered an employee. 

Tony Natale (King of Prussia, PA):

  • Successfully prosecuted a Petition to Suspend on behalf of a Berks County mushroom growing facility and successfully suspended the claimant’s indemnity benefits for abandoning available employment. The claimant sustained a fall from a height, injuring a disc in her spine. The employer secured medical evidence releasing the claimant to return to restricted duty work. A job offer was issued. The claimant returned to work earning her pre-injury wages. The claimant alleged that, even though the job was light duty in nature, her back pain was so crippling while working that, “I could not even walk.” The claimant treated at a local hospital and ultimately abandoned the job. Tony submitted the hospital records into evidence, which revealed “no back pain” and “no trouble ambulating.” 
  • Successfully defended a national interstate trucking company before the Workers’ Compensation Appeal Board. The claimant sustained a head injury with post-concussive syndrome during a collision brought on by the claimant’s epileptic seizure. The claimant was disqualified from ever returning to work as a truck driver based on his non-work-related epilepsy condition. He continued to allege symptoms of post-concussive syndrome and maintained his right to continue to collect workers’ compensation benefits. In the underlying action, Tony presented evidence (including the claimant’s own treating neuropsychologist) which the court found to prove full recovery from all injuries. The claimant appealed to the Board, alleging the workers’ compensation judge disregarded substantial evidence in support of ongoing disability. Tony made a two-pronged argument, citing to the fact that the claimant’s appeal did not conform to statutory requirements and the evidence of record demonstrated that the claimant’s work injury resolved and the driving force behind the appeal was to keep the claimant collecting benefits since he could not work due to a non-work-related condition. 

Andrea Rock (Philadelphia, PA):

  • Defeated a Fatal Claim Petition for death benefits for a mother, brother and son. The decedent was found dead in the cab of his truck from diabetic ketoacidosis. The workers’ compensation judge found our evidence supported that the employee did not suffer a work-related fatality. 
  • Defeated the claimant’s appeal before the Appeal Board. The Board affirmed the workers’ compensation judge’s decision, which found the Claim Petition was appropriately dismissed as the claimant was an independent contractor. The Board found that the judge issued the appropriate credibility findings as to the witnesses, which fully supported the Decision.

Francis Wickersham (King of Prussia, PA):

  • Successfully defended two Claim Petitions for two separate injuries. The claimant worked as a delivery driver for the employer and alleged suffering a concussion and injuries to his right shoulder on October 31, 2021, and November 2, 2022, from tripping and falling at locations where he was making deliveries. The employer accepted his November 2, 2022, work injury, but only as to his left elbow. The claimant returned to his regular work after the November 2nd injury and continued working until January 2023, when he took a severance from the employer. He then filed Claim Petitions for the two injuries. During litigation, Frank forced the claimant’s expert orthopedic surgeon and neurologist to admit that no concussion or right shoulder injuries were suffered in either incident by confronting them with Emergency Room records, which showed no such injuries were reported by the claimant. Based on these experts’ admissions, the workers’ compensation judge found their testimonies to be not credible and dismissed the Claim Petitions. The judge also granted a Termination Petition Frank filed as to the November 2, 2022, injury. 

A. Judd Woytek (King of Prussia, PA):

  • Successfully prosecuted a Termination Petition in a case where the claimant cut her thumb in a blender while working for the employer. In granting the employer’s Termination Petition, the workers’ compensation judge credited the opinions of our medical expert that the injury was nothing more than a simple laceration with no nerve or tendon damage. The judge awarded a small closed period of benefits and then terminated benefits completely as of the date of our IME. The judge also found that physical therapy treatment beyond the date of the IME was not reasonable, necessary or related.

*Prior Results Do Not Guarantee a Similar Outcome 

Firm Highlights

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

Thought Leadership

New Jersey Appellate Division Affirms Recreational Immunity for County Under Landowners' Liability Act

In a recent unpublished decision in Matthew Kuzma, etc. v. Middlesex County Parks Department, et al., the New Jersey Appellate Division affirmed summary judgment in favor of Middlesex County Parks Department, holding that the county was immune from liability under New Jersey's Landowners' Liability Act (LLA), notwithstanding its failure to plead the immunity as an affirmative defense in its answer to the Complaint. The case arose from injuries sustained by fourteen-year-old plaintiff, Matthew Kuzma, while playing basketball at Spring Lake Park in South Plainfield on August 23, 2019. The plaintiff observed a crack in the basketball court before beginning to play but did not consider it dangerous. During the game, his foot became caught in the crack, causing him to fall and suffer a significant ankle injury. The plaintiff alleged that the injury resulted in ongoing physical limitations and deprived him of the opportunity to play collegiate basketball. The plaintiff filed suit alleging that the defendants negligently maintained the basketball court. Although the county did not assert LLA immunity as an affirmative defense in its answers, it later moved for summary judgment on that basis. The plaintiff opposed the motion, arguing that the county had waived the defense by failing to plead it. The county maintained that the plaintiff had received sufficient notice of its intent to rely on the LLA through discovery and therefore suffered no unfair surprise or prejudice. The trial court agreed and granted summary judgment, concluding that the county should be permitted to invoke statutory immunity notwithstanding its failure to formally plead the defense. Relying heavily on the New Jersey Supreme Court's guidance in Arias v. Cnty. of Bergen, holding a county park was subject to the immunity of the LLA, the Appellate Division affirmed, holding that the county's failure to plead LLA immunity did not preclude reliance on the defense under the circumstances presented. The court determined that the plaintiff had received adequate notice of the immunity claim through discovery and that permitting the defense furthered the public-policy objectives embodied in the LLA. In affirming dismissal, the Appellate Division acknowledged the seriousness of the plaintiff's injury and the general societal interest in maintaining parks and recreational facilities in a safe condition. However, the court emphasized that both the legislature and the New Jersey Supreme Court have expressed a clear policy choice to limit liability for public and private landowners who make recreational property available for public use. The decision reinforces the courts' continuing adherence to the Landowners' Liability Act and the principle that recreational lands and facilities should be broadly protected from liability exposure, even in cases involving significant personal injuries.

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

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

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage Case

Thought Leadership

The Tolling Trap: Filing Alone Will Not Toll the Statute Without Good-Faith Service

The Eastern District of Pennsylvania recently reinforced a critical limitation on bad faith claims, holding that a timely filing alone will not preserve a cause of action absent a good-faith effort to serve the original process. The plaintiff had presented a claim for underinsured motorist benefits to his auto insurer. The insurer evaluated the claim and determined that the plaintiff’s accident-related damages did not exceed the bodily injury liability insurance limits of the at-fault driver and denied his claim. Among other claims, the plaintiff sought to present a claim for insurance bad faith under 42 Pa. C.S.A. § 8371, to which a two year statute of limitation applies. He first filed a praecipe for writ of summons before the expiration of the statute of limitation. However, the plaintiff did not attempt to serve the praecipe or writ until after the statute of limitations had expired. Additionally, the service failed as the plaintiff had mailed the original process to an incorrect address. Despite receipt of the Postal Service’s failure to deliver the original process, the plaintiff did not attempt to re-serve the writ. Two months later, the plaintiff filed a complaint and then successfully served that complaint. The insurer sought to dismiss the plaintiff’s bad faith claim as time-barred by the statute of limitations. The district court agreed. Though the plaintiff had filed a praecipe for a writ of summons prior to the expiration of the statute of limitations, the statute is only tolled if there is a good faith effort to serve that original process. In this case, the court determined that the plaintiff had failed to perform a “good faith effort to serve the original process”. Additionally, though the filing and service of a complaint can serve as alternative original process when the lawsuit is commenced by the filing of a praecipe for a writ of summons, the plaintiff filed his complaint after the statute of limitations had expired. The plaintiff’s bad faith claim was therefore determined to be barred by the statute of limitations and dismissed by the court, with prejudice. A key takeaway for the defense is not to assume that the statute of limitations has been successfully tolled by a plaintiff merely because a praecipe for a writ of summons or complaint has been filed prior to the expiration of the statute. A filed complaint or writ is only part of the equation. The defense should carefully review the docket and filings to confirm that the plaintiff also performed the requisite good faith effort to serve that original process. A thorough review of the docket may reveal that the plaintiff failed to make the good-faith service efforts necessary to toll the statute of limitations.

Thought Leadership

Florida Supreme Court Rules Florida Statute §627.70152 Does not Apply Retroactively

In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.

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. 

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

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group