.

What's Hot in Workers' Comp

WHAT’S HOT IN WORKERS’ COMP - NEWS AND RESULTS*

What’s Hot in Workers’ Comp, Vol. 27, No. 8, August 2023

August 1, 2023

NEWS

Marshall Dennehey is proud to highlight the firm’s Workers’ Compensation Department attorneys who have been recognized in the 2024 editions of The Best Lawyers in America® and Best Lawyers: Ones to Watch™ and 2024 “Lawyers of the Year” in their respective practice areas and demographic regions. 

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For more information, please visit https://www.bestlawyers.com/.

2024 LAWYERS OF THE YEAR
Pittsburgh: Daniel Deitrick, Workers’ Compensation Law – Employers
Harrisburg: Shannon Fellin, Workers’ Compensation Law – Employers 

2024 BEST LAWYERS IN AMERICA 
Harrisburg, PA

  • Brigid Alford, Insurance Law; Litigation – Insurance 
  • Kacey Wiedt, Workers’ Compensation Law – Employers 

King of Prussia, PA

  • Frank Wickersham, Workers’ Compensation Law – Employers 

Scranton, PA

  • Ross Carrozza, Workers’ Compensation Law – Employers 
  • Michael Sebastian, Workers’ Compensation Law – Employers 

Philadelphia, PA

  • Michele Punturi, Workers’ Compensation Law – Employers 

Pittsburgh, PA

  • Daniel Deitrick, Workers’ Compensation Law – Employers 

Wilmington, DE

  • Keri Morris-Johnston, Workers’ Compensation Law – Employers 

2024 BEST LAWYERS: ONES TO WATCH
Jacksonville, FL

  • Kelly Scifres, Workers’ Compensation Law – Employers 

Wilmington, DE

  • Benjamin Durstein, Workers’ Compensation Law – Employers 


Heather Byrer Carbone (Jacksonville, FL) was a panelist at the Workers’ Compensation Institute (WCI) Annual Conference in Orlando. In “Hot Topics for Attorneys,” representatives from both the claimant and defense bars discussed the most important and controversial case law decided by Florida appellate courts and the most relevant amendments to the law enacted by the Florida Legislature. As the nation’s largest workers’ compensation conference, this event brings together workers’ compensation professionals from across the country for an enhanced learning and educational experience.

Eli Hassinger (Philadelphia, PA) authored the article, “Pa. High Court Doubles Down on the Workers’ Comp Act’s Exclusivity Provision,” for Pennsylvania Law Weekly. You may read the article at this link: Click here. 

Andrea Rock (Philadelphia, PA) presented a webinar as part of the Philadelphia Bar Association Workers’ Comp Compliance Crusher 2023: Update on Important Issues in Workers' Compensation Practice. In “Navigating the Medicare Maze,” Andrea and plaintiff’s counsel co-panelist discussed the basics of Medicare, including who exactly is a Medicare Beneficiary and the reasonable expectation of Medicare enrollment. They highlighted how knowing the Medicare laws, the intricacies of Medicare Set-aside allocations, the effect of conditional payments, and the impact Medicare can have on settlement, are all imperative in the representation of clients.

 

RESULTS*

Tony Natale (Philadelphia, PA) successfully defended a Lebanon, Pennsylvania-based pharmaceutical manufacturer in the litigation of a claim petition. The claimant alleged an injury in the form of a fractured and crushed femur as a result of a fall off the roof of the manufacturing plant. Tony was able to convince the court that the claimant was not in the course and scope of employment at the time of the fall. Despite the claimant’s allegation that he was on the roof of the facility in the middle of the night to perform work duties, the court accepted rebuttal testimony and forensic evidence from the scene of the fall which proved that the claimant was taking a clandestine unauthorized smoke break on the roof of the facility and, therefore, not furthering the interests of the employer. The claimant also tested positive for marijuana after the fall and was ultimately discharged for cause. No benefits of any kind were awarded.

Tony Natale (Philadelphia, PA) successfully prosecuted a review petition on behalf of a 125-year-old manufacturer of power and grounding connectors and accessories, which challenged by way of causation a major surgery the claimant underwent after a work injury. The claimant injured her upper extremity at work. Many months later, she had a major surgery and alleged it was related to the injury. Tony convinced the court that the surgery was due to a genetic condition present prior to the work injury and that the condition was not aggravated by the work injury. All medical bills and disability related to the surgery were dismissed.

Tony Natale (Philadelphia, PA) successfully prosecuted a review petition filed on behalf of a Philadelphia-based insurance company. The underlying claim involved a specific loss amputation injury that was mistakenly accepted as compensable with a Lost Time Bureau document. The specific loss benefit rights expired upon receipt of the requisite number of weeks of benefits related to the claimant’s amputation injuries, but the Lost Time Bureau document remained open. The issue before the court was whether the carrier could challenge an open notice of compensation payable (now many years old) with an allegation that the injury was a specific loss from its inception. After effective legal wrangling, the court granted the review petition and closed out the indemnity benefits by finding the injury was at all times a specific loss.

Michele Punturi (Philadelphia, PA) and Audrey Copeland (King of Prussia, PA) convinced the Pennsylvania Commonwealth Court to affirm the decisions of the Appeal Board and the Workers’ Compensation Judge granting a petition to terminate benefits in favor of the firm’s client, the employer, an international automotive manufacturing corporation. The court found the Board did not err by affirming the judge’s finding that the employer established a change in the claimant’s medical condition, as the judge did not solely rely on the claimant’s testimony, but had credited the testimony of the employer’s medical expert of claimant’s full recovery. 
 
Andrea Rock (Philadelphia, PA) and Audrey Copeland (King of Prussia, PA) obtained a favorable decision from the Commonwealth Court, which affirmed the Appeal Board’s order upholding the judge’s decision denying a claim petition. The court rejected the claimant’s argument that the judge’s decision did not meet the “reasoned decision” requirement of Section 422(a) of the Pennsylvania Workers’ Compensation Act and that the claim petition should be granted for at least a limited period. The court agreed with the employer that the judge did not arbitrarily and capriciously disregard the employer’s medical witness’ testimony, that the claimant had sustained a low back strain and sprain that had resolved at the time of his IME. The court observed that the judge discredited the claimant's testimony and rejected the existence of any work-related injury, and that the employer’s expert’s opinion was based on the false history provided by the claimant and did not constitute an admission or competent evidence that a work-related injury occurred. 

Kristopher Starr (Wilmington, DE) defended a claimant’s petition for compensation, alleging injury to the entire left upper extremity (hand, wrist, elbow, shoulder) and neck from a work accident. The claimant claimed this injury resulted in carpal tunnel to the left wrist, cubital tunnel to the left elbow, internal derangement/injury to the left shoulder and a neck/cervical spine traction/pull injury. The claimant presented two Philadelphia-area orthopedic surgeons/specialists—Dr. Michael Birns, a shoulder specialist, and Dr. Julie Mayberry, a hand specialist. On behalf of the employer, Kris presented Dr. Jonathan Kates, an orthopedic surgeon. The claimant’s petition was denied in all respects. Key to this determination was evidence presented by Kris that the claimant started with complaints and treatment to the bilateral upper extremities for nerve injury well prior to his employment and the alleged work accident. The claimant had undergone a carpal tunnel release prior to his employment with the employer. Also, Kris’s cross-examination of the claimant’s shoulder expert limited his testimony to the left shoulder and produced the doctor’s admission that he was not qualified to address the left wrist, elbow or neck. The employer’s expert medical witness opined that the bilateral upper extremity nerve symptoms likely represented a neck nerve problem that pre-existed the work injury and caused a “double crush syndrome” emanating from the neck. The Board found the employer’s medical expert to be persuasive and credited the testimony of this witness, as well as Kris’s presentation of evidence demonstrating that many of the symptoms pre-existed the alleged work accident. Further, the Board found the cross-examination of the claimants specialist, Dr. Birns, effectively limited any evidence to the left shoulder only, which the Board did not find persuasive. The claimant’s petition was denied. 

John Swartz (Harrisburg, PA) was able to have claim and penalty petitions denied and dismissed in their entirety, and no litigation costs were awarded. The claimant had filed a claim petition seeking indemnity benefits for a low back injury allegedly occurring on April 26, 2022. In order to defend the petition, John presented two medical experts and testimony from the employer. John also presented evidence of failed drug tests of the claimant and criminal conviction records. The judge accepted our evidence and concluded the claimant did not suffer a disabling work injury.

John Swartz (Harrisburg, PA) successfully defended a claim petition seeking benefits. The claimant was injured on December 1, 2021, described as a right hand, right arm, shoulder, upper extremity and rib injury. The claimant underwent two surgeries. The first occurred in December 2021 as an emergency surgery. Then he had a thoracic outlet surgery performed in February 2023. The case was bifurcated on whether the claimant provided notice within 120 days of the injury as required by § 311 of the Act. The claimant testified on several occasions on this issue. John presented testimony from the employer’s witnesses that the claimant never reported a work injury. The claimant admitted he knew the condition was work-related in December 2021. First notice of the injury was when the claim petition was filed in September 2022, well after the 120-day period. The judge accepted the testimony of the employer’s witnesses on the issue of notice. The claim petition was denied and dismissed.

John Swartz (Harrisburg, PA) was successful in defending the claimant’s appeal to the Appeal Board regarding alleged non-payment of medications related to the claimant’s work injury in the amount of $21,319.08. The claimant sought a 50% penalty as well for non-payment of these medications. The Workers' Compensation Judge denied and dismissed the claimant’s penalty petition. The Appeal Board affirmed the Workers' Compensation Judge’s decision, which was based on the argument that the medical expenses were not specifically related to the accepted injury, which was a L4-5 disc herniation. Therefore, these medications were appropriately denied in their entirety.

*Prior Results Do Not Guarantee a Similar Outcome
 

 

What’s Hot in Workers’ Comp, Vol. 27, No. 8, August 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

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.

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

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.

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

News

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

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.

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

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.

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. 

News

Marshall Dennehey Again Earns Recognition in Distinguished Chambers USA