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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. 4, April 2025

April 1, 2025

NEWS

Marshall Dennehey Announces 2025 New Jersey Super Lawyers Rising Stars

We are pleased to announce that Kiara Hartwell and Adam Huber (both of Mount Laurel, NJ) have been selected to the 2025 edition of New Jersey Super Lawyers magazine. A Thomson Reuters business, Super Lawyers is a rating service of lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. Each year, no more than five percent of the lawyers in the state are selected as Super Lawyers and no more than 2.5 percent are selected for Super Lawyer Rising Stars. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations. A description of the selection methodology can be found at http://www.superlawyers.com/about/selection_process.html. No aspect of this advertisement has been approved by the Supreme Court of New Jersey. 

 

RESULTS*

Michael Duffy (King of Prussia, PA):

  • The Worker’s Compensation Judge granted the Review and Termination Petitions and denied the claimant’s Review Petition. The claimant fell approximately 20 feet from a ladder while climbing off a roof. He landed on his feet and sustained bilateral calcaneal fractures. The employer issued a Notice of Compensation Payable accepting bilateral ankle fractures. In his Termination Petition, Michael alleged a full recovery and filed the Review Petition to amend the description of injury to bilateral calcaneal fractures instead of bilateral ankle fractures. The claimant, too, filed a Review Petition to amend the description of injury to include traumatic neuropathic pain secondary to bilateral calcaneal fractures, lumbar spine strain, lumbar spine disc injury and bilateral lumbar radiculopathy. The workers’ compensation judge found the defense expert more credible than the claimant’s expert. 

Benjamin Durstein (Wilmington, DE):

  • The Industrial Accident Board rejected the claimant’s allegation that she sustained a 40% permanent impairment to the left arm caused by complex regional pain syndrome. The claimant’s expert used the 5th Edition of the AMA Guides to the Evaluation of Permanent Impairment to arrive at 40%. Instead, the Board accepted the testimony of the employer’s medical expert, who relied upon the 6th Edition of the AMA Guides. The Board concluded that the appropriate rating was 13% to the left upper extremity.

Tony Natale (King of Prussia, PA):

  • Successfully prosecuted a Termination Petition involving a claimant who tripped at work and sustained an injury to the knee. The claimant’s body habitus was one of morbid obesity prior to the injury. Expert medical evidence was presented demonstrating the work injury was limited to a contusion and that the significant degeneration in the knee was pre-existing and due to wear and tear related to morbid obesity. The court found the expert’s opinion of full recovery to be credible and limited the injury to a knee contusion which fully resolved, resulting in a complete defense verdict.
  • Successfully defended a Claim Petition involving a claimant who was helping to lift a 400-pound slab when she felt her shoulder “pop.” After vigorous cross examination, the claimant admitted that she provided notice 122 days after the date of injury (which was untimely by the letter of the law). She then asserted that her injury was “repetitive trauma” and argued that each day she worked after the original incident caused a new injury. Cross examination of the claimant’s medical experts dispelled her theory of compensability. The court dismissed the Claim Petition on the bases of a violation of the notice provisions of the Act and on the lack of credibility of the medical experts presented. A complete defense verdict on all counts. 
  • Successfully defended a Claim Petition involving a claimant, who slipped and fell down a flight of concrete stairs and alleged multiple injuries to body parts, from head to toe. The employer’s panel doctor found the work injuries limited to the claimant’s extremities. The claimant was referred by his attorney to a pain specialist who opined significant injuries to multiple body parts. However, claimant’s a expert was forced to admit that he has been practicing medicine for less than two years and only offered opinions about neck and back injuries—nothing else. The claimant alleged serious disc herniation injuries in the neck and back and still pursued other body part injuries in the litigation with no additional expert evidence. The employer presented an orthopedic surgeon who found no injuries on the date of his evaluation and opined that the claimant fully healed from any injuries he may have sustained. The court found only minor strains to the neck and back with a full and complete recovery (and no further benefits due). Allegations of multiple disc herniation injuries were dismissed as unrelated.
  • Successfully prosecuted a Suspension Petition involving a claimant who was released to return to work with restrictions and ultimately to full duty. She failed to return to her pre-injury position upon release to full duty, but she did return to alternate employment. Any wage loss was argued to be unrelated to the work injury since the pre-injury job was open and available. The court granted a suspension of benefits on this basis, resulting in a full defense verdict. 
  • Successfully prosecuted a third level appeal regarding Medicare conditional payments after an auto accident injury. This appeal centered on the federal government’s contractor who continually denied the company’s initial level appeals to limit conditional payment recoupment based on policy exhaustion. The court found the evidence submitted supported the auto policy at issue, the payments made on the basis of the policy and exhaustion of the policy after paying numerous medical bills. The government sought additional conditional payments and after a vociferous oral argument, the court found no additional conditional payments were due. 

Michele Punturi (Philadelphia, PA):

  • Successfully prosecuted a Modification Petition, establishing a significant reduction in dependent benefits as the claimant’s daughter was over 18 and was not enrolled as a full-time student in any accredited educational institution, pursuant to § 307 of the Pennsylvania Workers’ Compensation Act. Based upon documentary evidence and a sound legal argument, the judge granted the decrease in weekly benefits and awarded a 100% credit against future benefits for the employer to recoup the overpayment that occurred beginning in 2023.

Judd Woytek (King of Prussia, PA):

  • The workers’ compensation judge granted Petitions for Review of Utilization Review Determinations, finding the treatment by three of the claimant’s medical providers to be unreasonable and unnecessary. The treatments found unreasonable and unnecessary included electrical stimulation, chiropractic manipulation, PRP injections, Botox injections, pain patches, trigger point injections and office visits. 
  • The judge granted a Petition to Terminate benefits as the judge found the opinions of our medical expert competent and credible and terminated benefits as of the date of the IME. 
  • The workers’ compensation judge granted a Termination Petition and denied the claimant’s Review/Reinstatement Petition. The judge credited the opinions of our medical expert, that the claimant was fully recovered from his accepted low back strain and right shoulder strain and that surgery performed on the claimant’s shoulder was not related to the work injury. He also found the claimant’s own testimony to be inconsistent and not credible.

*Prior Results Do Not Guarantee a Similar Outcome 


 

What’s Hot in Workers’ Comp, Vol. 29, No. 4, April 2025, 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 © 2025 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. 

News

Marshall Dennehey Again Earns Recognition in Distinguished Chambers USA

News

Christina Gonzales To Speak at the Women of Color Roundtable at DRI’s Diversity and Inclusion Seminar

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.

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. 

graphic with Maria Granaudo photo text announces she has joined the firm as a shareholder in the Health Care Dept.

News

Maria R. Granaudo Joins Marshall Dennehey’s Wilmington Office As a Shareholder in the Health Care Department

Event

29th Annual FDLA Florida Liability Claims Conference

Jim and Erica will team up to present, "Supporting the Next Generation: Connecting with Associates." This panel-style presentation will explore communication best practices from the perspective of a senior shareholder and newer associate. The discussion will focus on the communication styles of different generations and effective strategies to avoid communication breakdowns. Topics to be discussed include the hiring process, perceptions of defense work among newer lawyers, work-life balance issues after hiring, and mentoring.

Result

Summary Judgment Secured, Preserving $750,000 in Coverage for Insured in Major Trucking Liability Dispute

Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

Thought Leadership

Marijuana Legalization and Workplace Risk: What New Jersey Employers Need to Know

While the legalization of recreational marijuana usage poses a risk of increased work-related accidents for younger workers, employers can work to curb this increase by investing in education, effective drug policies, and employee assistance programs.