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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. 1, January 2024

January 1, 2024

NEWS

Kiara Hartwell’s (Mount Laurel, NJ) article “A Workers’ Compensation Judge’s Approval of a Section 20 Settlement Can Be Contingent on a Petitioner’s Live Testimony” appeared in the December 2023 issue of Defense Digest. You can read her article here. 
 

RESULTS*

Kristopher Starr (Wilmington, DE) received a favorable decision from the Industrial Accident Board. The claimant had been injured in a compensable, accepted work accident where he sustained an injury to his lumbar spine (ligamentous). However, he had pre-existing degenerative pathology in the spine. We filed a Petition for Review to end temporary total disability benefits, alleging the claimant could work within restrictions. The claimant filed a petition for additional compensation, demanding approval of a lumbar discogram and ongoing total temporary disability benefits. The Board held that conservative treatment was appropriate, including TFESI injections, and that the lumbar discogram was not reasonable. Two MRI studies evidenced resolving soft tissue injury to the lumbar spine ligaments, and the claimant did not present as a surgical candidate. The employer’s doctor was found persuasive as to the issue of lumbar discography. The claimant’s doctor conceded, under cross-examination, there were no neurologic deficits evidencing radiculopathy on successive exams. Considering the evidence and the Health Care Practice Guidelines, the Board determined discography was not reasonable. A DACD Petition was granted in part and denied in part. As to indemnity, Kris presented vocational evidence and a Labor Market Survey showing no wage loss for positions within the claimant’s work restrictions. Kris indicated that Hoey v. Chrysler did not apply as the claimant was advised he could no longer be accommodated and was obligated to look for work. The claimant’s physician agreed, under cross-examination, that the claimant could work the Labor Market Survey jobs (all sedentary positions) and that the claimant was not totally disabled. Ongoing indemnity benefits were denied and our petition for review was granted. No appeal is anticipated by the claimant.

Frank Wickersham (King of Prussia, PA) successfully defended a Claim Petition on behalf of a national trucking company where the answer was late without a reasonable excuse. Frank persuaded the workers’ compensation judge that the Claim Petition was not well-pled as to the main allegation, which was that the claimant suffered a disabling aggravation of a pre-existing cervical condition from a fall at work. Frank further convinced the judge that the claimant did not meet his burden of showing that he aggravated a pre-existing cervical condition from his fall. The claimant’s expert admitted on cross-examination that when he first saw the claimant about one month after the work incident, he already had a head droop from a cervical fusion that was done five months before the date of injury. According to this expert, surgery “unrelated” to the work injury would be needed to correct it. This was inconsistent with the expert’s direct examination testimony, which was that the work incident had caused the head droop.

Kacey Wiedt (Harrisburg, PA) achieved the following successful results:
•    Successfully prosecuted a Modification Petition where the workers’ compensation judge found that the claimant’s benefits are to be reduced based upon an earning power assessment. The judge found our medical and vocational experts more credible than the claimant’s experts that the claimant had an earning power of $610.00 per week.
•    Successfully defended a Claim Petition where the workers’ compensation judge found that the claimant did not sustain a work-related wrist injury due to repetitively lifting cardboard boxes at work. The judge found our employer’s witnesses more credible and persuasive than the claimant, who testified that he was performing this task for a short period of time and that his medical issues are related to his diabetes, not an overuse injury in accordance with our medical expert opinion.
•    Successfully prosecuted a Termination Petition where the workers’ compensation judge found that the claimant was fully recovered from his back injury, which was previously accepted as a “lumbar sprain, L4-5 disc herniation with aggravation of degenerative spondylosis and spinal stenosis at L4 causing radiculopathy.” The judge found our medical expert more credible than the claimant’s medical expert.

Judd Woytek (King of Prussia, PA) achieved the following successful results:
•    Successfully defended a survivor’s claim for Federal Black Lung benefits. The miner had worked 11 years in the coal mine industry, and the parties stipulated that he had simple coal workers’ pneumoconiosis at the time of his death. Judd presented credible medical evidence to show that the miner’s pneumoconiosis did not cause or contribute his death, and benefits were denied. 
•    Successfully defended a claim for a right shoulder sprain/strain, impingement and SLAP tear. Based upon the fact witness and medical expert testimony that Judd presented, the workers’ compensation judge limited the injury to a right shoulder sprain/strain, limited disability benefits to a closed period of four months and terminated benefits as of the date of our IME. 
•    Along with Audrey Copeland (King of Prussia, PA), successfully defended the claimant’s appeal from a workers’ compensation judge’s decision (that had been affirmed by the Workers’ Compensation Appeal Board), which found that the claimant’s temporary total disability benefits should be reinstated as of the date he filed his Reinstatement Petition based upon Protz following a pre-Protz IRE. 

*Prior Results Do Not Guarantee a Similar Outcome
 

 

What’s Hot in Workers’ Comp, Vol. 28, No. 1, January 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

News

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

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. 

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.

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.

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

News

Marshall Dennehey Again Earns Recognition in Distinguished Chambers USA

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. 

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

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.