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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. 8, August 2024

August 1, 2024

NEWS

On August 1, Michele Punturi (Philadelphia, PA) was joined Michelle Leighton (Partner and National Claim Advocacy & Consulting Leader at Connor Strong) and Robin S. Roeder (Senior Vice President Risk Management at Sedgwick) in presenting a webinar for CLM, “The Dream Team Approach to WC Case Management,” where they discussed why controlling exposure is central to the workers’ compensation claims and litigation process. For successful case management, the employer, broker, claims adjuster and attorney must work from the same strategic playbook. By adopting a team approach, we can identify roles and ensure clear communication among all team members to limit exposure, reduce costs, and close claims. But who defines the rules of the game, and who are the star team members? What are their roles, and how should they interact to benefit each other? This session offered an updated perspective on balancing the team dynamic. 

On August 9, The Legal Intelligencer published Michael McMaster's (Philadelphia, PA) article "AI in Workers' Compensation: Are We There Yet?" You can read Mike's article here.
 

RESULTS*

Tony Natale (King of Prussia, PA) successfully defended a Claim Petition involving complex injury allegations and a most disturbing initial judgement on the pleadings since the employer failed to timely answer the claim petition. When Tony became involved, he was able to limit the judgement on the pleadings to the date that a timely Answer could have been filed. Ongoing disability in the case turned on the claimant’s medical evidence and credibility. The claimant presented an expert witness who opined that the claimant’s virtual lifetime of serious low back and neck abnormalities were “aggravated” by the claimant sitting down at work after feeling dizzy. Tony presented rebuttal expert evidence from a well-respected orthopedic surgeon demonstrating no architectural change in the claimant’s lumbar spine or cervical spine due to the alleged injury event and no ongoing or acute problems. The court accepted the defense evidence as credible, and the claimant was found to be without ongoing disability and fully recovered from any condition subject to the former judgement on the pleadings. 

Bill Murphy (Roseland, NJ) was able to permanently close a matter involving a serious shoulder injury with a Section 20 resolution. By way of background, in New Jersey, Section 20 settlements (full and final) are approved in a small number of limited cases—denied claims, minimal treatment, dispute as to whether there’s any permanent disability, etc. In this case, the petitioner sustained significant injuries to her shoulder with an MRI showing tearing. The petitioner ultimately underwent two shoulder surgeries, and our own permanency expert found permanent disability of 7.5% partial total. Based upon wage statements Bill obtained, he asserted that any permanency award should be paid at a reduced rate—making the monetary award about $40,000 less than what would be paid at the full chart rate. When the judge attempted to have the parties settle for a higher percentage of disability—to make up for the lower rate—Bill indicated our intent to take the matter to trial. In order to avoid a trial, the judge indicated he would approve a Section 20 settlement. Thus, in an admitted claim involving serious injuries, two surgeries and our own doctor conceding permanency, we were able to close the matter out permanently with a Section 20 resolution. 

Michael Duffy (King of Prussia, PA) received a favorable decision where Judge Rosen granted our termination petition and denied the claimant’s Petition for Penalties and Petition to Review Utilization Review Determination. The employer had accepted a right middle finger sprain. In prior litigation, the claimant’s review petition seeking to expand this injury was denied. In the pending termination petition, the Judge found the claimant not credible with regard to his ongoing complaints. The claimant claimed to be bed bound, and the judge opined that this allegation as a result of a finger sprain was absurd. The penalty petition related to payment of medical bills, and the judge found that, since the medical bills were related to the hand and not the finger, the penalty was denied. The Judge also denied the claimant’s Petition to Review the Utilization Review Determination, finding that more than 185 physical therapy visits were not reasonable for a finger sprain and because the opinions of the reviewer were corroborated by the employer’s expert’s opinion of full recovery.

*Prior Results Do Not Guarantee a Similar Outcome 


 

What’s Hot in Workers’ Comp, Vol. 28, No. 8, August 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 © 2024 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. 

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. 

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.