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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. 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

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.