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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. 28, No. 12, December 2024

December 1, 2024

NEWS

Heather Byrer Carbone (Jacksonville, FL) has been recognized as 2024 Florida Trend “Legal Elite NOTABLE - Women Leaders in Law.” Heather is honored for her impact in the field of law, mentorship, and leadership in professional organizations and civic/community service initiatives. Read the news release here.

On November 20, Tony Natale (King of Prussia, PA) was one of the key speakers at the annual Delaware Valley Workers’ Compensation Trust’s (DVWCT) Claim Prevention seminar. This live event was attended by Risk Control employees, managers, police chiefs, and command staff as well as department heads and local government leadership in the townships and municipalities that are administered by the DVWCT. Tony spoke on the importance of presenting unified and global defenses between workers’ compensation, unemployment compensation, internal grievance arbitration and employment law where applicable in cases involving workplace injuries. Tony was able to give examples of this unified directive, citing a current case in litigation involving all of these areas of law and the blue print used to provide a global defense.

On November 15, The Legal Intelligencer published “Goodbye ‘Yellow Freight’ Road?,” by Judd Woytek (King of Prussia, PA). You can read Judd’s article here.
 

RESULTS*

Michael Duffy (King of Prussia, PA) successfully defended against two review petitions where the claimant sought to expand the description of injury from a right shoulder injury to include cervical and lumbar disc herniations, radiculopathy and various psychiatric injuries. The claimant also sought to increase his average weekly wage to a significantly higher expectation rate. The workers’ compensation judge limited the injuries to the right shoulder and rejected the claimant’s expectation rate argument.

Tony Natale (King of Prussia, PA) successfully had a penalty petition, filed against a local university, dismissed on all counts. The claimant sustained an injury to his low back which was accepted as compensable. The claimant returned to work at a modified job, and his benefits were made the subject of a notice of suspension. The claimant worked for several months and never challenged the suspension notice. Thereafter, the claimant left work when his attorney referred him to a new treating doctor. The carrier made some changes to claim data within the WCAIS system (correcting the claimant’s address). As a result of a glitch in the WCAIS system, a new Notice of Compensation Payable was issued based on this data change. The claimant filed a penalty petition, arguing his benefits must be reinstated based on the issuance of the new Bureau document. Tony presented evidence by way of factual testimony and documentary evidence to demonstrate the fallibility of the WCAIS system and exposed the illogical argument made by the claimant’s attorney to the contrary. The court dismissed the penalty in its entirety.

Tony Natale also successfully defended an giant fashion distribution center in the litigation of a Claim Petition. The claimant filed a work injury claim against the fashion center. The matter was assigned to a workers’ compensation judge, and the employer/carrier failed to file a timely answer, relegating all “well pleaded facts” as an admission against interest. As it turned out, the named employer did not have an employer/employee relationship with the claimant, but the late answer acted as an admission of such a relationship based on the pleadings within the claim. Tony was then referred the case to try to mitigate exposure in light of this negative turn of events. Based purely on oral argument detailing the constitutionally offensive result that would be achieved by the interpretation of the case law surrounding late answers, the court dismissed the Claim Petition in its entirety.

Tony Natale also successfully prosecuted a termination petition on behalf of Pennsylvania cabinetry company. The matter originally began as a settlement of a prior 2009 work injury claim. At the settlement hearing, the claimant chose to forego the settlement after learning through Tony’s cross examination of the potential Medicare issues involved in the claim. The employer/insurer moved forward with a new independent medical exam with a renowned orthopedic surgeon. A termination petition was filed, alleging full and complete recovery from the work-related injury, and the court adopted the defense medical opinions as fact. As a result, all benefits were terminated. 

Rachel Ramsay-Lowe (Roseland, NJ) successfully completed a trial on the issue of whether the claimant had a cognitive disorder and whether the carrier should authorized medical treatment for a spinal cord stimulator. After taking testimony of both doctors, the courts agreed with Rachel’s argument that the claimant’s doctor’s report lacked objective medical findings to reach the diagnosis of cognitive disorder and dismissed this from the overall claim. The claimant also requested a hearing to address the carrier’s denial of a spinal cord stimulator. Rachel made the argument the claimant’s injuries are merely a strain/strain of the lumbar spine and that the claimant failed to meet the medical treatment guidelines, which require the claimant receive a psych evaluation to determine if they are a good candidate for the stimulator. In addition, Rachel successfully argued the treatment currently rendered does not show a failed back surgery or a special circumstance where a stimulator should be granted. The court agreed with Rachel’s argument and found the carrier does not have to provide a spinal court stimulator.

Michael Sebastian (Scranton, PA) successfully defended a Claim Petition, which alleged the claimant suffered a work-related cervical injury on June 29, 2023. The claimant testified that he felt a snap in his back, but did not feel the pain right away, and continued to work until July 17, 2024. He then went to the emergency room and subsequently had surgery on July 20, 2023. During cross-examination, the claimant agreed he only suffered a cervical injury, not a low back injury. He further noted he had a prior low back injury on October 19, 2022, for which he filled out an accident report and was sent to a doctor and received treatment. However, the claimant first reported the June 29, 2023, injury on September 1, 2023, and at that time could not recall a specific event that occurred on June 29, 2023. However, he did confirm he heard a snap in his back when the injury did occur. The claimant also agreed he worked full duty, without reporting the incident, until July 17, 2024.

Dr. Martinez, the claimant’s expert, testified the claimant was a partial quadriplegic in the upper and lower extremities. Dr. Martinez opined the claimant had cervical stenosis with myelopathy and, given his underlying condition, was probably going to have surgery at some point in the future but it was aggravated by the constant use of his neck. 

Dr. Henderson, the defense expert, found no evidence of a work-related injury on June 29, 2023, and that the claimant’s symptoms are consistent with cervical stenosis with myelopathy, which is a degenerative condition. Dr. Henderson opined the claimant’s surgery was for a pre-existing condition and the current treatment is unrelated to any alleged work injury. Dr. Henderson reviewed the MRI from from July 17, 2023, noting there were no acute findings. He also reviewed Dr. Martinez’s testimony, noting the claimant did not have disc herniations and that the surgery was not for disc herniations, but for disc issues in the cervical spine that were degenerative in nature. 

The workers’ compensation judge found the claimant to be not credible to the extent he testified he suffered a work-related injury on June 29, 2023, or any disability related to it. He noted the claimant’s demeanor during the hearing was not credible and that his testimony was called into question based upon the employer’s policy that you must immediately report injuries, as he had in the past. The judge also noted the claimant’s description of the work injury, i.e., a snap in his back, conflicted with documentation and the contemporaneous medical records. He also noted that prior similar complaints made on June 26, 2023, and failed to mention a work-related injury in the July 17, 2023, medical notes. The judge noted that subsequent treatment notes also indicate the injury or condition pre-dated the June 29, 2023, work injury date. 

The judge accepted the testimony of Dr. Henderson over Dr. Martinez, noting that Dr. Martinez did not review the cervical MRI films or reports and did not have the medical records immediately pre-dating the work injury, including Dr. Tayoun’s records. The judge found that Dr. Henderson’s history, opinions and testimony were corroborated by the medical records. Further, the judge emphasized that Dr. Martinez, during cross examination, offered inconsistent and illogical explanations that the claimant’s lumbar complaints and lower extremity findings were related to the lumbar condition prior to the work injury, but after that date they were related to the cervical condition. 

Kacey Wiedt (Harrisburg, PA) secured a decision denying the claimant’s Claim and Penalty Petitions. The claimant, a mechanic, alleged he sustained a right ankle fracture, right ankle abscess, and avulsion fracture of the lateral talus as a result of falling off the back of a pickup truck while removing a truck-cap at work. The claimant asserted he was on the clock and on the employer’s premises when the fall occurred. He claimed he was assisting his employer’s friend in removing his truck-cap from his pickup truck. Through employer witness testimony, Kacey was able to show that the claimant was not in the course and scope of employment when he injured his ankle. Kacey proved the claimant assisted the individual with removing the truck-cap for a purely personal reason and not at the direction of his employer. Kacey also showed that the injury occurred shortly after the claimant’s work shift ended and he had clocked out for the day. 

*Prior Results Do Not Guarantee a Similar Outcome 


 

What’s Hot in Workers’ Comp, Vol. 28, No. 12, December 2024 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 © 2023 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

News

Veteran Trial Attorney Joseph M. Toddy Joins Marshall Dennehey’s Casualty Department in Philadelphia

Result

Unanimous Verdict Obtained in a Medical Malpractice Matter in Bergen County, New Jersey

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. 

Thought Leadership

Coverage Determined, Judgment Paid, Bad Faith Survives: Fourth DCA’s Opinion Highlights the Distinction Between Contractual and Extra-Contractual Damages

In Healthy Food Experts, LLC v. Amguard Ins. Co., No. 4D2025-0181 (4th DCA June 10, 2026), the Fourth District Court of Appeal explained that an insurer’s payment of a judgment in a breach of contract case does not automatically eliminate a later bad faith claim seeking extra-contractual damages. The decision provides guidance on when a first-party bad faith claim may still proceed after a coverage dispute has already been resolved by a judgment. Healthy Food Experts, LLC involved a dispute related to a property damage claim submitted under a commercial insurance policy issued by the insurer following a ceiling collapse at the insured’s restaurant. The insurer denied coverage for the insured’s losses for business personal property and business income, but extended coverage for the food spoilage losses. As a result, the insured filed a breach of contract action and ultimately obtained a jury verdict. The insurer appealed the verdict and, while the appeal was pending, the insured filed a Civil Remedy Notice (CRN) seeking payment for the judgment plus interest. The insurer failed to cure the CRN within the statutory sixty-day cure period, but paid the judgement in full with accrued interest following the appeals court’s per curiam affirmance. Nevertheless, the insured filed a first party bad faith lawsuit claiming to have suffered extra-contractual damages. In response to the bad faith suit, the insurer filed a Motion to Dismiss for failure to state a cause of action, relying on Fridman v. Safeco Insurance Co. of Illinois, 185 So. 3d 1214 (Fla. 2016) stating that damages were fixed by judgment of the breach of contract suit and the insured could not recover additional damages beyond those already awarded. The insurer also argued that the judgment did not exceed the insured’s policy limits, which was a required element of a first party bad faith claim. The trial court dismissed the bad faith action based on Fridman, concluding the insured could not seek any additional damages.  The insured appealed the court’s ruling to the Fourth DCA arguing the trial court’s order conflicts with Florida law and misapplies Fridman, as a contractual damage determination in the underlying suit establishes the “condition precedent to prosecute a first party bad faith action.” Cingari v. First Protective Ins. Co., 377 So. 3d 1169, 1174 (Fla. 4th DCA 2024). Further, the insured argued that the only purpose to the binding language in Fridman is to prevent the re-litigating of the same damages, which in this case are the contractual damages. The insured asserted the damages were not the “same” as they were seeking consequential damages from the insurer’s alleged bad faith. The Fourth District emphasized in its ruling that a first party bad faith claim is not ripe for litigation until there has been the following: a determination of the insurer’s liability for coverage; a determination of the extent of the insured’s contractual damages, and the required civil remedy notice is filed pursuant to §624.155(3)(a).  Demase v. State Farm Fla. Ins. Co., 239 So. 3d 218, 221 (Fla. 5th DCA 2018) The court concluded that the necessary conditions were satisfied as the jury verdict determined both coverage and the extent of the insured’s contractual damages, and the insured properly filed a civil remedy notice, so the bad faith claim was ripe for litigation. The Fourth DCA further explained the insured could not seek contractual damages in its bad faith action, which was previously litigated in its breach of contract suit. However, the court determined the insured could seek “extra-contractual damages,” which were not recoverable in the insured’s breach of contract suit, which may include interest, court cost, and reasonable attorney’s fees incurred by the insured. Further, the court held excess judgment is not essential in a first party bad faith claim and the insurer’s late payment of the judgment did not preclude the insured’s bad faith action. As a result, the Fourth District Court of Appeals reversed the trial court’s final dismissal order of the bad faith action. This opinion highlights the distinction between contractual and extra-contractual damages. Moreover, this case demonstrates that a judgment does not necessarily end the dispute in a first party property claim as it is could also serve as a prerequisite of a bad faith action. The decision serves as a reminder that insurers may face bad faith exposure notwithstanding the payment of a judgment in an underlying breach of contract action.

Congratulations to our 2026 Florida Super Lawyers & Rising Stars: Elizabeth Ferguson, A.C. Nash, Taylor Naughton, Sophia Philor, Amara Rodriguez

News

Marshall Dennehey Announces 2026 Florida Super Lawyers & Florida Rising Stars

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.

Thought Leadership

Pennsylvania Supreme Court Holds Self-Referral Prohibition Does Not Cover Prescriptions Written by Physicians with Ownership Interests in Dispensing Pharmacies

700 Pharmacy v. Bureau of Workers’ Compensation Fee Review Hearing Office (State Workers’ Insurance Fund); Nos. 97, 98, 99, 100, 101 MAP 2024; decided June 16, 2026; by Justice Mundy.   In this case, Drs. Miteswar Purewal and Shailen Jalali, treating physicians for workers’ compensation claimants, wrote prescriptions for various medications that were filled by 700 Pharmacy. The worker’s compensation insurer refused to pay for the prescriptions on the basis that they were illegal self-referrals under the Act. 700 Pharmacy subsequently filed fee review applications with The Bureau of Workers’ Compensation Medical Fee Review Office. At a fee review hearing, both physicians stipulated they had a financial interest in the pharmacy.  The physicians argued that the Anti-Referral Provision of the Act does not bar self-referrals on prescription drugs and pharmaceutical services, since the provision does not specifically identify prescription drugs. The Fee Review Hearing Officer rejected this argument and found that prescriptions for medications are prohibited under the “goods or services” language included in the provision. 700 Pharmacy appealed to the Commonwealth Court, and the court affirmed, agreeing with the Hearing Officer’s interpretation of “goods and services” as encompassing prescriptions. 700 Pharmacy appealed to the Supreme Court.  The Supreme Court reversed the decisions of the Hearing Officer and the Commonwealth Court, holding that the term “goods and services” in the Anti-Referral Provision of the Act did not include prescriptions. According to the Court, “goods and services” was not a catch-all, but simply explanatory as to the eight enumerated categories in the provision. The provision (Section 306(f.1)(3)(iii)) reads, in pertinent part: Notwithstanding any other provision of law, it is unlawful for a provider to refer a person for laboratory, physical therapy, rehabilitation, chiropractic, radiation oncology, psychometric, home infusion therapy  or diagnostic imaging, goods or services pursuant to this section if the provider has a financial interest with the person or in the entity that receives the referral. The Court said that if the General Assembly wanted to specifically include prescription drugs and pharmaceutical services in the Anti-Referral Provision, they would have done so. They pointed out that prescription drugs and pharmaceutical services were included by the legislature in Section 306 (f.1)(3)(vi) of the Act as to reimbursement, and claimed that their omission from the Anti-Referral Provision supports the conclusion that those services are not included in the Anti-Referral Provision’s self-referral prohibition.

Thought Leadership

Unanimous New Jersey Supreme Court Holds That Personal Emails of Public Employees and Officials are Subject to OPRA

In Rosetti v. Ramapo-Indian Hills Regional High School Board of Education, the New Jersey Supreme Court unanimously held that government-related emails, which are contained within personal email accounts, are government records under the Open Public Records Act (OPRA), and a log of those emails must be produced when requested. In reaching this decision, the court conducted an analysis of the OPRA and cited previous cases that held that emails do in fact fall within OPRA’s definition of a record and must be produced when requested pursuant to the Act. The court in Rosetti then had to answer the question as to whether public officials’ personal email accounts that are used for government purposes are subject to OPRA, and found that they are. Rosetti made an OPRA request to the Board of Education seeking email logs from Board members’ personal email accounts. The Board refused to produce the logs and indicated that it was not under any obligation to produce personal email account logs, only from government-related email accounts. The issue was whether a log had to be produced for Board members’ personal email accounts, which they used to conduct Board business. The Board argued that while it was possible to create a log for government-related email accounts through its IT Department, it was not possible to do so for personal email accounts. The court rejected this argument and ruled that Board members are required to search their personal email accounts and create a log of government-related emails housed in those accounts. Once completed, each Board member then must submit a certification detailing the searches that were conducted. The court went one step further with a suggestion to government employees and officials, stating, “[g]overnment agencies should strongly advise their employees, elected officials, and others engaged in government-related business to refrain from using their personal email accounts when conducting government-related business.”  Please do not hesitate to contact me with any questions regarding this case and others pertaining to the OPRA. 

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

News

Marshall Dennehey’s John J. Hare Brings Home Attorney of the Year Honors; Firm Named Litigation Department of the Year in Two Categories

Marshall Dennehey took home top honors in three categories at the The Legal Intelligencer’s 2026 Pennsylvania Legal Awards, held June 11 in Philadelphia. The first place awards include: Attorney of the Year: John J. Hare, Chair of the firm’s Appellate Advocacy & Post-Trial Practice Group and Executive Committee member, together with Charles “Chip” Becker of Kline & Specter Litigation Department of the Year, Appellate – Third Win in a Row! Litigation Department of the Year, Product Liability/Mass Torts “There is no one more deserving of Attorney of the Year honors than John. This award is a testament to his exceptional skill, dedication, and leadership—qualities that truly exemplify the very best of our firm,” said G. Mark Thompson, Marshall Dennehey’s President & CEO. “These honors also reflect the strength and depth of our product liability, mass torts, and appellate practices across Pennsylvania and beyond, underscoring our ongoing commitment to delivering outstanding results for our clients.” Attorney of the Year – John J. Hare, Marshall Dennehey, together with Charles “Chip” Becker, Kline & Specter Over the past year, John and Charles were opposing counsel in many of the highest-profile civil appeals in Pennsylvania. John is renowned as a preeminent appellate lawyer on the defense side, and Chip on the plaintiff's side. They have opposed each other repeatedly, exhibiting peerless professionalism and exceptional civility, while zealously litigating under the unremitting pressure of high-profile litigation and record-setting verdicts totaling more than $3.5 billion. They have also collaborated, outside of litigation, on many commissions, committees, and projects of importance to the Pennsylvania judiciary and legal community. Litigation Department of the Year – Appellate Law, Winner (previous winner, 2025 and 2024) 2025 was another standout year for the firm’s Appellate Advocacy & Post‑Trial Practice Group, led by John J. Hare, which was retained to challenge many of Pennsylvania’s “nuclear” verdicts—awards exceeding $10 million. Notably, the department persuaded the Pennsylvania Superior Court to reverse a Philadelphia judgment of $1.09 billion, the largest judgment ever overturned by a Pennsylvania appellate court. The group’s 11 full‑time Pennsylvania‑based appellate lawyers are at the center of Pennsylvania’s most high-profile matters, bringing more than 150 years of combined appellate experience. They routinely handle post‑trial and appellate matters and are frequently engaged to participate in and monitor trials in high‑exposure cases to ensure that critical legal issues are properly raised and preserved for appeal. Litigation Department of the Year – Product Liability/Mass Torts, Winner This marks the first win for the firm’s Pennsylvania Product Liability and Mass Torts practices, which operate within our Casualty Department, managed by Matthew Schorr and Jeff Rapattoni. For almost five decades, Fortune 500 product manufacturers/distributors and their insurers have turned to these groups to defend their litigation. Led by Bradley D. Remick and Vlada Tasich, our Product Liability group’s success can be attributed to its commitment to keeping abreast of ever-changing legal theories, judicial viewpoints, and evolving technology impacting the product liability landscape. Our attorneys have successfully handled thousands of product liability matters in all jurisdictions across the state. Likewise, our mass tort litigation practice – divided into Asbestos & Mass Tort, and Environmental & Toxic Tort Litigation –  has defended manufacturers, distributors, contractors, and premises owners in thousands of personal injury and other claims. Led by Kevin E. Hexstall and Patrick T. Reilly, most attorneys in these groups have more than 20 years of experience, and our seasoned trial team has tried hundreds of cases to verdict, consistently achieving strong results through both trials and settlements. In addition to these awards, Marshall Dennehey was a Litigation Department of the Year finalist for Professional Liability.