.

What's Hot in Workers' Comp

What’s Hot in Workers’ Comp - News and Results*

What’s Hot in Workers’ Comp, Vol. 27, No. 9, September 2023

September 1, 2023

NEWS

Elias Hassinger (Philadelphia, PA) will co-present at the 2023 Philadelphia Bar Association’s Bench-Bar & Annual Conference on September 22, 2023. In “Proper Identification of Pain Generators in Work Injuries/Personal Injuries and Novel Treatment Options,” Eli and the other panelists will explore proper identification of pain generators and novel treatment options and how they may affect the workers' compensation claim.

Michele Punturi (Philadelphia, PA) will co-present “Getting Caught with Your Hand in the Proverbial Cookie Jar” at this year’s ClaimsXchange in Philadelphia. In this presentation, the panel will discuss best strategies for investigating, uncovering, and deterring fraudulent acts while exploring methods to recover monies paid out to fraudulent actors. They will also examine how fraud impacts the claim value and how to counteract its debilitating effects. For more information, visit: https://www.theclaimsx.org/getting-caught-with-your-hand-in-the-proverbial-cookie-jar.  
 


 

RESULTS*

Greg Bartley (Roseland, NJ) successfully defended a case involving the cancellation of a workers’ compensation policy. The case involved a company that had failed to pay their insurance premium on its workers’ compensation policy. The carrier notified the insured company that the premium had not been received and that the carrier was taking the necessary steps to cancel the policy. The carrier complied with rules for policy cancellation pursuant to the New jersey Department of Labor. The case involved a worker who was injured on the day after the policy was cancelled. The company, on the day after the worker’s injury, electronically paid the premium. The day following receipt of the policy premium, the carrier issued a new policy covering the company. When given notice of the claim, the carrier denied it based upon the cancellation of the policy. The petitioner filed a claim petition, alleging that the failure to pay the premium should not deny him coverage, as the payment of the premium and subsequent issuance of the new policy amounted to a mere lapse in coverage and the carrier’s acceptance of the premium should result in the coverage being reinstated as of the date of cancellation, not the date of the new policy. After numerous hearings over more than two years and two judges, who supported the position of the petitioner, Greg argued the case with all parties present. The court agreed that the cancellation was legally effective and, therefore, entered an order of dismissal as to the carrier.

Ben Durstein (Wilmington, DE) was successful in having the Delaware Superior Court affirm the Industrial Accident Board’s decision that the employer correctly paid for ketamine infusion treatments. The Board had found that these treatments were properly paid pursuant to the Delaware Workers’ Compensation Fee Schedule. The court rejected the claimant’s argument that Section 2322(b) of the Workers’ Compensation Act required a higher payment for the “reasonable cost” of the treatment.

Adam Huber (Mount Laurel, NJ) successfully obtained orders for dismissal with prejudice on two Medical Provider Applications. Two separate New Jersey medical providers alleged they were entitled to additional money for medical treatment provided in New Jersey to a New Jersey resident. Each provider claimed that, because the injured worker who received the treatment was a current resident of New Jersey and treatment was rendered in New Jersey, that provided sufficient contact for the court to exercise jurisdiction for a Medical Provider Application and bills should be paid at a usual and customary rate, as opposed to New York’s fee schedule. The worker’s compensation claim that resulted in the Medical Provider Applications was a New York claim, with no New Jersey contacts for the parties at the time of the injury. The injured worker only later moved to New Jersey and received medical treatment with New Jersey providers, who were then paid per the New York fee schedule. The providers’ billed amounts were $221,591.55, $6,157.50, and $6.157.50 for three dates of service. The employer made payments in the amount of $55,488, $1,401.83, and $740.42, respectively, per the New York fee schedule. Adam successfully argued to the court that, because it would not have been able to exercise jurisdiction over the underlying worker’s compensation claim, it would not be able to exercise jurisdiction over the two resulting Medical Provider Applications. Therefore, the providers could not seek additional money in New Jersey based on its usual and customary standard, as opposed to New York’s fee schedule. This saved the employer up to $176,276.30 in potential medical payments. Both Medical Provider Applications were dismissed with prejudice.

William Murphy (Roseland, NJ) successfully obtained orders for dismissal with prejudice where two New Jersey medical providers alleged they were entitled to additional monies for medical treatment provided in New Jersey to a New Jersey resident. The underlying accident involved a truck driver who resided in New Jersey, regularly worked in New Jersey, but sustained injuries in Massachusetts. While the injured worker initially filed a New Jersey workers’ compensation claim, he subsequently opted to pursue his claim in Massachusetts, in part, because Massachusetts allowed him to select his own treatment providers (unlike New Jersey, where the employer designates the treatment providers). Each provider claimed that, because the injured worker was a resident of New Jersey, worked in New Jersey and treatment was rendered in New Jersey, there was sufficient contact for the court to exercise jurisdiction for a Medical Provider Application. As such, they claimed their bills should be paid at New Jersey’s standard of a usual and customary rate, as opposed to Massachusetts’s fee schedule. The providers’ billed amounts were $173,927.52 and $128,088.00. The employer made payments in the amount of $13,872.87 and $7,149.01, respectively, per Massachusetts’ fee schedule. William successfully argued to the court that, because the injured worker had opted to pursue a Massachusetts workers’ compensation claim and had selected these medical providers pursuant to said claim (as a New Jersey claim would have required employer-approval), the payment of these medical providers should be governed by Massachusetts’ workers’ compensation system. Therefore, the providers could not seek additional money in New Jersey based on its usual and customary standard, as opposed to Massachusetts’ fee schedule. This saved the employer up to $280,993.64 in potential medical payments. Both Medical Provider Applications were dismissed with prejudice.

Tony Natale (Philadelphia, PA) successfully defended a claimant’s reinstatement and review petitions and prosecuted the employer’s termination petition. The claimant sustained traumatic injuries when the vehicle he was operating was targeted for collision by a mentally disturbed individual trying to commit suicide. The claim was accepted as compensable, and eventually, the claimant was able to return to work full duty. Nine years later, the claimant alleged his right to reinstatement to total disability and payment of medical bills that quizzically were not submitted to the carrier but were paid, in part, by a personal health carrier. The claimant was also pursuing Heart & Lung benefits, and the township’s bargaining agreement allowed the H&L claim to be governed by the ruling in the workers’ compensation claim. Both sides submitted expert evidence on the issues of full recovery and recurrence of disability and factual evidence on the payment of medical bills. The court found in the favor of the employer on all issues. 

Tony Natale (Philadelphia, PA) successfully prosecuted a termination petition involving a knee injury where claimant’s job duties required him to fill a basket with mushrooms, pivot or sidestep and dump the basket into a slicer machine. During his course and scope of employment, it was judicially determined that he sustained injuries in the form of meniscal tears of the knee and the rather vague “injury” of patellar subluxation. On cross examination of claimant’s medical expert, Tony forced him to admit that the meniscal tears had fully recovered. As for the subluxation, Tony exposed the fact that the expert did not diagnose such a condition in the medical treatment notes but, instead, referred to a “chondromalacia” condition that was NOT judicially part of the work injury. The claimant’s medical expert went as far as to indicate on cross examination that the claimant remained totally disabled from his pre-injury job, even though Tony forced him to admit that he had no idea of the claimant’s pre-injury job. 

Robin Romano (Philadelphia, PA) successfully defended the claimant’s petition to review to add a right hip injury. The claimant had already succeeded in having a claim petition granted that acknowledged the left hip and left hip surgery. The Workers’ Compensation Judge carefully considered the testimony of both medical experts. Importantly, the judge rejected the claimant’s surgeon’s testimony, which found a causal relationship between the right hip and the work injury. Robin presented the defense medical expert, who credibly testified that the mechanism of the original injury would not have caused a right hip injury and, also, that an altered gait, suffered by claimant as a result of the accepted left hip surgery, did not lead to a right hip injury or aggravation of what was clearly pre-existing osteoarthritis. 

Michael Sebastian (Scranton, PA) successfully defended a claim petition alleging a specific loss of the right eye from being hit in the eye with the top of a box. The Workers’ Compensation Judge rejected the claimant’s expert’s testimony that the macular scar, which is in the back of the eye, was caused by the work injury and believed the defense expert, who opined there was insufficient force from the top of the box to cause the injury to the back of the eye. The defense expert testified that the claimant’s loss of vision was unrelated to the work event because the claimant did not have any visible damage to the front of the eye at the time of the accident and that there are dystrophies that can cause macular degeneration in one eye. 

*Prior Results Do Not Guarantee a Similar Outcome
 

What’s Hot in Workers’ Comp, Vol. 27, No. 9, September 2023, 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

Thought Leadership

Pennsylvania Supreme Court to Review Whether Legal Malpractice Claims May Be Recast as Breach of Contract Claims

The Pennsylvania Supreme Court recently granted allowance of appeal to consider whether a plaintiff may pursue a breach of contract claim against an attorney based on allegations that the attorney failed to provide competent legal services. The issue is significant in professional liability litigation because it concerns whether a plaintiff may avoid the statute of limitations applicable to professional negligence claims by characterizing the alleged misconduct as a breach of contract. Antoine Poteat retained attorneys Gary Asteak and Nino V. Tinari to represent him in a criminal matter. After his conviction was subsequently overturned through a Post Conviction Relief Act proceeding, Poteat filed suit against his former attorneys alleging that they breached their retainer agreements by failing to provide competent legal services. The attorneys argued that the claims sounded in professional negligence, rather than breach of contract, and were therefore time-barred. The trial court dismissed Poteat’s complaint, but the Superior Court, sitting en banc, reversed. The Superior Court held that the gist-of-the-action doctrine did not bar Poteat’s breach of contract claim because the alleged failure to provide competent legal services could constitute a breach of the parties’ agreement. The Court further held that a legal-services agreement contains an implied duty requiring an attorney to provide competent legal services, even where the agreement does not contain an express provision requiring such services. The Pennsylvania Supreme Court granted review in July 2026 and will consider whether the Superior Court’s decision conflicts with Pennsylvania precedent distinguishing contract and tort claims, including Bruno v. Erie Insurance Co. The Supreme Court will also address whether a plaintiff may maintain a breach of contract claim based on an implied duty to provide competent legal services without identifying a specific contractual provision that was breached. The Supreme Court’s decision could have significant implications for professional liability litigation in Pennsylvania, particularly where plaintiffs seek to characterize claims arising from alleged professional negligence as contractual claims.

Thought Leadership

The Search-Incident-to-Arrest Doctrine Does Not License Strip Searches

In Beatty v. Gardner, No. 25-2860 (3d Cir. Sept. 16, 2026), Kyle Beatty sued police officers Clinton Gardner and Calvin Irvin under 42 U.S.C. § 1983 after they stopped, arrested, and searched him three times during a drug investigation in Williamsport, Pennsylvania. The officers initially smelled marijuana coming from the car in which Beatty was sitting and observed marijuana residue, giving them probable cause to arrest him. Beatty consented to the first pat-down, and the second search was conducted incident to his lawful arrest; neither search uncovered weapons or contraband. The officers then transported Beatty to the police station solely to strip-search him, but the strip search also revealed nothing. The District Court granted the officers summary judgment, concluding that the initial stop, arrest, and first two searches were reasonable and that qualified immunity protected the officers from liability for the strip search. The Third Circuit affirmed, but held that the strip search itself violated the Fourth Amendment. The court concluded that the search-incident-to-arrest doctrine does not automatically permit officers to strip-search an arrestee outside the jail or prison setting. Because strip searches are highly intrusive and the traditional justifications for searches incident to arrest (officer safety and preservation of evidence) did not justify the search of Beatty, the officers generally needed either the arrestee’s consent, exigent circumstances, or a warrant supported by probable cause to believe that a search beneath the clothing would reveal weapons, contraband, or evidence. Here, the officers had none of those justifications. Nevertheless, the court held that qualified immunity barred damages liability because, at the time of the search, the right against a warrantless strip search of an arrestee outside the institutional setting was not clearly established by Supreme Court or Third Circuit precedent. The court likewise upheld qualified immunity on Beatty’s First Amendment retaliation claim and affirmed summary judgment for the officers.

Thought Leadership

Two Tracks, No Preclusion: Ohio Supreme Court Preserves Separate Damages Claims After Chapter 2506 Appeals

The Supreme Court of Ohio has clarified that an administrative appeal under Ohio Revised Code Chapter 2506 does not bar a separate action for damages and declaratory relief that could not have been pursued in the administrative appeal. The Ohio Supreme Court considered Sheetz, Inc. v. Centerville (2026-Ohio-3531) as a result of a certified question from the Southern District of Ohio. The question was whether Sheetz, the gas station/convenience store brand, was barred from seeking damages in a separate action since damages were not sought in their administrative appeal. Ultimately, the Ohio Supreme Court ruled that res judicata does not bar a separate action for damages after ruling on an administrative appeal because R.C. Chapter 2506 is limited to judicial review and cannot grant affirmative relief. The case arose after Centerville’s city council rejected a site plan proposed by Sheetz, Inc. that had received unanimous approval from the City’s planning commission. Sheetz filed an administrative appeal pursuant to R.C. 2506 in the Montgomery County Court of Common Pleas, and two months later filed a complaint for damages and declaratory relief under 42 USC § 1983 as a takings action with the city, city council, and other objectors as improper takings and a violation of due process, as well as interference with business and contractual relationship. The city and city council removed the § 1983 action for damages to federal court. Montgomery County Court of Common Pleas reversed the city council’s denial, and allowed the Sheetz project to move forward. Upon that ruling, the federal court issued a show-cause order questioning whether the § 1983 action was barred by the doctrine of res judicata via claim preclusion (which includes all theories of recovery).  Sheetz argued that Ohio courts of common pleas do not have authority to award damages or declaratory relief as party of the R.C. Ch. 2506 appeal, therefore res judicata could not be triggered to apply to the § 1983 action. Additionally, Sheetz moved to certify the issue to the Ohio Supreme Court, citing differing results between the second and sixth districts on this same issue. Centerville approached the question, not from a claim preclusion standpoint, but from the holding in Grava v. Parkman, Twp which states that a final judgment rendered on the merits bars all subsequent action based on the same transaction or occurrence.  In yet another approach, an objector argued that claim preclusion was satisfied because Sheetz could have raised its damages claims in the administrative appeal – Sheetz disagrees. In their analysis, the Supreme Court of Ohio broke down the elements of a claim preclusion analysis: 1) a prior final, valid decision on the merits by a court of competent jurisdiction; (2) a second action involving the same parties, or their privies, as the first; (3) a second action raising claims that were or could have been litigated in the first action; and (4) a second action arising out of the transaction or occurrence that was the subject matter of the previous action. The Court held that R.C. Ch. 2506 does not permit a party to argue damages as R.C. Ch. 2506 limits the common pleas jurisdiction as if it were sitting on appeal, and therefore can only affirm, reverse, vacate, or modify the appealed order, or can remand the case to the administrative body. Further, the Court held that Grava’s conclusion that a final judgment precludes additional litigation for different relief is inapplicable under this fact pattern because it was meant only to apply to those matters in which the plaintiff brings the exact same case twice, but for new relief. The Court found Grava was inapplicable because Sheetz could have requested damages or declaratory relief in the R.C. 2506 appeal. Therefore, Grava would be nothing more than dicta if it even did apply. Going further, the Ohio Supreme Court disavowed Sixth Circuit precedent which, in reliance on Grava and other district court decisions, permitted an owner to seeking relief under 42 U.S.C. § 1983 alongside an administrative appeal. See Moore v Hiram Twp., 988 F.3d 353 (6th Cir.2021). The Ohio Supreme Court found that the Sixth Circuit had disregarded a critical decision in Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 1993-Ohio-115, which clearly held that a R.C. Ch. 2506 appeal cannot be combined with a complaint seeking other claims for relief. Id. at ¶ 11. To that end, the Ohio Supreme Court has determined that the decisions Moore relied on (outside of Grava) are no longer good law, and that Moore was wrongly decided. The decision draws a clear procedural boundary: Chapter 2506 provides judicial review of an administrative decision, not a forum for independent claims seeking affirmative relief. Although Grava may place claims arising from a single transaction within the potential scope of claim preclusion, those claims are not barred unless the complete claim-preclusion test is satisfied. Because Sheetz could not have pursued damages or declaratory relief in its Chapter 2506 appeal, the separate action was not precluded. The remaining question for practitioners looking to apply or defend against this exception is when does the statute of limitations begin to run on damages and declaratory relief claims related to an administrative decision on appeal? A takings action in federal court has a 2-year statute of limitations, or as a state claim, 4 years (like the other tortious claims raised therein). Correlating this case with others, an administrative appeal will not likely toll the statute of limitations on claims based on a final decision by a municipal authority. Therefore, practitioners should look for these cases to be brought simultaneously.