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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. 1, January 2025

January 1, 2025

NEWS

Congratulations to Kiara Hartwell (Mount Laurel, NJ), who was elected a shareholder of the firm effective January 1, 2025. A member of the Workers’ Compensation Department since 2016, Kiara devotes her practice to defending employers, insurance carriers and self-insureds in workers’ compensation matters. She authors the New Jersey updates for our What’s Hot monthly workers’ compensation newsletter and frequently writes for external publications. Admitted to practice in New Jersey and Pennsylvania, Kiara is a graduate of New York University and Rutgers University School of Law.

Heather Byrer Carbone (Jacksonville, FL) was recently honored with the John J. Schickel Professionalism and Excellence Award by the E. Robert Williams Inn of Court. Well deserved!

On February 12, 2025, Michele Punturi (Philadelphia, PA) will join a panel at CLM 2025 Focus Conference: Work Comp, Casualty and Risk Management in Lake Buena Vista, FL. In “Workers’ Comp Risk Management Best Practices: Insights from High-Risk Industries,” the panel will address the ongoing challenges of workers’ compensation in high-risk industries. The presenters will share customized risk management strategies, from talent acquisition and safety program development to effective injury management for smooth employee reintegration. For more information, visit https://lm.theclm.org/event/showeventdescription/29195. 
 

 

RESULTS*

Benjamin Durstein (Wilmington, DE) received a favorable decision from the Industrial Accident Board. The Board accepted the testimony of the employer’s medical expert, which acknowledged lumbar spine and cervical spine injuries related to a work accident, although they fully resolved and the claimant returned to his preexisting baseline condition. 

Tony Natale (King of Prussia, PA) reports five recent successful outcomes for our clients. In the first case, Tony successfully defended a Berks County mushroom farm from a claimant’s appeal challenging a full recovery termination award issued by the underlying court, as well as a dismissal of a penalty request/review challenging the nature of the adjudicated injury. The claimant alleged on appeal that the underlying decision of the court was predicated upon “hired-gun” experts and the court should have “nullified” this evidence. Interestingly, as pointed out in the litigation, the claimant was the only party that relied on a “treating expert,” who was hired by the claimant attorney’s to become the “treating physician” in the case. The Appeal Board systematically rejected the claimant’s “appeal to hypocrisy,” and the underlying court decision was affirmed in entirety.

Tony also successfully defended a Pennsylvania medical equipment manufacturing company in the litigation of claim and penalty petitions. The Claim Petition involved an alleged shoulder injury with a judgment on the pleadings due to a late answer. Tony forced the claimant to admit on cross examination that he left work due to reasons other than the alleged shoulder injury. Tony also forced claimant’s medical expert to admit that the claimant was actively treating for a pre-existing shoulder condition which he withheld from the court and the defense expert. The court found the claimant and his expert not to be credible and dismissed all petitions in their entirety, resulting in a complete defense verdict.

Tony received a full defense verdict on behalf of a Pennsylvania medical equipment manufacturing company in the litigation of a claim petition involving an alleged ankle and Achilles Tendon injury. The claimant alleged, while “stepping backwards” at his work station, he felt immediate pain. Tony cross examined the claimant’s medical expert and established that this expert did not treat the claimant for his ankle or Achilles Tendon, was unaware the claimant had a prior ankle fracture with surgery, and admitted the current surgery and disability were the result of a degenerative condition arising out of the prior, unrelated ankle fracture. 

Tony also successfully defended a Montgomery County police department in the litigation of a Claim Petition. The claimant, a police officer, attended an out-of-state extended-stay educational conference. One evening after the conference activities ended, the claimant attended a “booze cruise” where she was imbibing with conference attendees, and she continued to socialize and party back at the hotel. Later that night, she entered her hotel suite (which was shared with another female officer), shining her flashlight in order to change clothes. While changing, her roommate became perturbed over the ruckus. An argument between the two officers ignited and soon thereafter full-fledged fisticuffs. The claimant alleged physical injuries, post-concussive syndrome, mental injuries and total disability. Tony cross examined the claimant and developed an evidence supporting she was not in the course and scope of employment at the time of injury. Tony also presented medical witnesses to support that the claimant did not suffer from post-concussive syndrome or any disabling physical or mental injuries. 

In a workers’ compensation case of first impression in Pennsylvania, Tony successfully defended a Berks County mushroom canning facility from a Claim Petition alleging repetitive trauma injuries to the upper extremities. The claimant worked as a machine operator and alleged that over time his duties caused nerve injuries to both upper extremities. Tony presented medical expert testimony which supported the existence of these nerve damage conditions in the upper extremities but challenged causation. In a modified Frye challenge to the claimant’s medical expert opinions, Tony argued through expert testimony that the state of science and medicine overwhelmingly supports the fact that “repetitive trauma” is not a substantial contributing factor to the development of carpal tunnel and cubital tunnel syndromes. While the court allowed the claimant to present expert testimony to the contrary, it ultimately found Tony’s expert testimony opinions to outweigh the claimant’s experts’ testimony. The court concluded for the first time in Pennsylvania that carpal tunnel syndrome and cubital tunnel syndrome is not borne out through alleged repetitive trauma. 

Andrea Rock (Philadelphia, PA) received a favorable decision where the judge terminated the claimant’s wage loss and medical benefits and denied claimant’s Review Petition to expand the nature of injury based on the opinion of the independent medical examiner. The claimant’s Petition to Review alleged the work injury included cervical radiculopathy, requiring surgical intervention, as well as disfigurement. After reviewing deposition testimony from the claimant, her treating physician and the independent medical evaluator, the judge was specifically persuaded that the claimant did not sustain a cervical spine injury; thus, the surgery was not related as her complaints to her neck did not begin until nearly a week after the original fall. Thus, the claimant’s medical and indemnity benefits were terminated and the review petition was dismissed in its entirety. 

Robert Schenk (Philadelphia, PA) successfully had the claimant’s Claim Petition denied by the judge, and in doing so, the judge found the claimant’s testimony as not credible. Robert established the claimant did not report a work-related injury until after she had been advised light-duty work was only available for employees injured on the job, along with surveillance evidence showing the claimant returning and working on the date of injury with no apparent injury. The claimant’s testimony about prior injuries was also in conflict with contemporaneous hospital records and those medical records showed the claimant had prior low back problems, with no new trauma being reported to the emergency room on the date of injury. 

In another matter, the judge granted Robert’s Petition to Review Medical Treatment. This would have been a termination petition, but the employer’s medical expert found the claimant fully recovered from only two of the three injuries. The judge found the testimony of the employer’s medical expert credible and granted the petition.

In a final case, Robert defended a Claim Petition where the judge awarded wage loss benefits for only three months and then terminated benefits based on the medical opinion of the employer’s medical expert.

A. Judd Woytek (King of Prussia, PA) received three favorable decisions recently. In the first case, Judd successfully defended a Claim Petition that alleged a hip and low back injury. Judd presented video evident showing the claimant limping when he arrived at work the day of the alleged injury. The workers’ compensation judge credited the video and the opinions of our medical expert in denying and dismissing the Claim Petition. 

In a second case, Judd successfully prosecuted a termination petition, arguing a full recovery from a left hand and low back injury. The workers’ compensation judge credited the opinions of our medical expert, that the claimant had fully recovered from his injuries. 

Finally, Judd successfully obtained orders in two separate cases directing the claimants to appear for IMEs as they had no valid excuse for their failure to appear for the IMEs the first time.

*Prior Results Do Not Guarantee a Similar Outcome 

 

What’s Hot in Workers’ Comp, Vol. 29, No. 1, January 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

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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. 

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News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

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.

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.

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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.