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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. 5, May 2024

May 1, 2024

NEWS

Congratulations to Kacey Wiedt (Harrisburg, PA) on his selection to the Central Penn Business Journal’s 2024 Power List for Law! The honorees are some of the Central Pennsylvania region’s most significant, influential, and respected leaders in their fields, as chosen by the CPBJ’s editorial leadership team and readers. Learn more here.

Robert Fitzgerald (Mount Laurel, NJ) spoke at the New Jersey Self Insurers Association annual conference. On April 24, Bob and fellow panelists presented, “Open Mic: Ask the Workers' Compensation Experts.”

Shareholder Andrea Rock (Philadelphia, PA) is a panelist for an upcoming webinar hosted by the Workers’ Compensation Section of the Philadelphia Bar Association on May 17. In “Got Pain? How to Recognize and Assess Pain Including the Identification of Pain Generators in Work Injuries and Novel Treatment Options,” the panelists will discuss the issues with pain generators, treatment options and their interaction in workers’ compensation litigation. To register, click here. 

 

RESULTS*

Benjamin Durstein (Wilmington, DE) was successful before the Delaware Supreme Court. The court affirmed the decisions of the Industrial Accident Board and the Superior Court, holding that the employer correctly paid for ketamine infusion treatment in accordance with the Delaware Fee Schedule. As Ben argued, it was the claimant’s burden—not the IAB’s or the employer’s—to present evidence regarding the adequacy of the billing codes utilized. The court directed the claimant to the Workers’ Compensation Oversight Panel as the correct forum to address whether the Fee Schedule amount payable for treatment constitutes reasonable compensation.

Robert Schenk (Philadelphia, PA) successfully had a Claim Petition denied and dismissed. The claimant, a clinical physical therapist, filed a Claim Petition for an alleged work-related injury to the knee that occurred on November 2, 2022. Surgery was recommended and, although the claimant had health care benefits and short-term disability available from the employer, she was adamant her claim needed to be processed as a workers’ compensation claim. The claimant did not miss time from work because of the injury. The workers’ compensation judge denied and dismissed the Claim Petition, finding the claimant did not sustain a work-related injury. The judge found it significant that the claimant’s prior history of knee problems required constant medical treatment. The judge also found noteworthy the claimant’s failure to move forward with a recommended knee surgery despite having alternative benefits from her employer. Finally, the judge found significant the medical opinion of the employer’s medical expert, who opined that the claimant had loose bodies in her knee which, from time to time, might cause a transient onset of symptoms, but that the need for surgery was related to the pre-existing degenerative changes.

Michael Duffy (King of Prussia, PA) received a favorable decision granting the employer’s termination petition. In this matter, the claimant had sustained injuries to her low back as a result of a work injury wherein she was struck in her back by a coworker opening a door. The claimant alleged she sustained additional injuries, including multiple disc herniations. After subpoenaing records from various providers, Mike was able to show that the claimant had been in multiple car accidents and had prior injuries to her low back that resulted in treatment lasting up to a few months prior to the work injury. The claimant had denied any prior injuries during her testimony before the workers’ compensation judge. The judge found the employer’s expert credible and terminated the claimant’s benefits.

Michael Sebastian (Scranton, PA): 

  • Received a favorable decision from the Workers’ Compensation Appeal Board. The claimant had injuries to his cervical, thoracic and lumbar spine. He already had a lumbar fusion and was looking to have surgery on his cervical spine. Mike argued that the claimant was a seasonable employee and had a low average weekly wage (AWW). The workers’ compensation judge found that the claimant was a seasonal employee but did not correctly calculate the AWW, and the Appeal Board found that the claimant was a seasonal employee and calculated his AWW at $60.00 per week. They reversed the judge’s decision on the medical bills, finding that the claimant did not meet his burden of proof. They also reversed the judge’s decision, finding that the claimant did not prove he had C6-7 severe spondylosis and right leg radiculopathy.
  • Received a favorable Appeal Board decision on the claimant’s appeal to Judge Snyder’s decision which, in part, suspended the claimant’s benefits. A Claim Petition was filed alleging a work injury and specific loss of half of the left ring and middle fingers and an injury to the left pinky finger. The judge found that the claimant suffered a work injury but did not prove sufficient bone loss to meet the standard for a specific loss. The judge suspended the claimant’s benefits based upon the testimony of the employer’s witness and the claimant’s doctor. During cross examination, the claimant’s doctor testified that the claimant was released to return to work and that a one-armed job was available to the claimant, which he refused. The Appeal Board affirmed the decision on all issues, finding that the bone loss was not a substantial part of the first phalange of a finger. They also upheld the workers’ compensation judge’s findings suspending the claimant’s benefits based upon the claimant’s expert’s testimony that he could perform one-arm work as of the date of the job offer.

*Prior Results Do Not Guarantee a Similar Outcome 

 

What’s Hot in Workers’ Comp, Vol. 28, No. 5, May 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

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

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.

News

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

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. 

News

Marshall Dennehey Again Earns Recognition in Distinguished Chambers USA

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.

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.

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. 

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

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.