Thought Leadership

NEWS

Benjamin Durstein and Keri Morris-Johnston (Wilmington) were featured speakers at the Workers’ Compensation Seminar 2023, co-hosted by the Delaware State Bar Association and Industrial Accident Board. Ben was a panelist for “Ethics and the Duty to the Tribunal and Opposing Counsel,” while Keri participated as part of a panel discussing “The Legal Implications of Successive Injuries.”
 
Ryan Hauck (Pittsburgh) has been elected by his peers to a second term on the Council of the Allegheny County Bar Association’s Workers’ Compensation Section. The committee supports the resolution of problems that are identified within the practice of workers’ compensation via interaction with the Bureau of Workers’ Compensation and its administrative personnel.
 

RESULTS*

Judd Woytek (King of Prussia) successfully defended a claim petition, in part. The judge granted the claimant’s claim petition, finding that she suffered a work-related injury on January 7, 2022, in the nature of a contusion to the right wrist and right elbow. However, the judge specifically found that the July 8, 2022, surgery performed on the claimant’s right elbow was not related to the work injury and that claimant was only disabled due to the work injury from February 11, 2022 to July 20, 2022, and fully recovered from her work-related injury as of July 20, 2022. The claimant’s benefits were terminated as of that date. In reaching his decision, the judge credited the opinions of our medical expert, Dr. Talsania, over the opinions of the claimant’s medical expert, Dr. Bontempo. The judge also found the claimant’s testimony to only be credible, in part. He noted that the claimant’s initial complaints were about breathing issues and that she did not advise her employer of the different injuries that she allegedly sustained. With regard to the medical experts, the judge noted that Dr. Talsania credibly explained how the mechanism of injury alleged by the claimant would be physically impossible to cause lateral epicondylitis. The judge credited the opinions of Dr. Talsania, that the force needed to cause a traumatic lateral epicondylitis would need to be so significant that the claimant would have sustained severe bruising, swelling and immediate pain. None of that occurred in this case. The claimant’s medical records were noted as inconsistent with the mechanism of injury as the claimant described and claimant’s medical expert, Dr. Bontempo, had an incomplete knowledge of the claimant’s history and mechanism of injury. Further, claimant’s expert failed to explain the mechanics of how the claimant’s fall would have caused a traumatic injury to the lateral epicondyle. The judge also credited the employer’s witness testimony that Judd presented, specifically finding credible the testimony that the claimant joked about the incident and did not appear to be injured. The testimony of the employer’s witness was accepted as credible by the judge.

Judd Woytek (King of Prussia) successfully argued that the claimant’s average weekly wage was much lower than the claimant alleged. The claimant was a part-time pizza delivery driver who alleged he was paid $600 per week in cash by the employer and earned $800–$900 per week in additional unreported tips. The employer asserted that the claimant was paid $150–$200 per week in wages and tips. The judge found in our favor and determined the average weekly wage was only $144. 

Judd Woytek (King of Prussia) successfully argued against a penalty for late payment of attorney’s fees. The judge granted the penalty petition but awarded zero in penalties.

Kristopher Starr (Wilmington) successfully defended a petition for cervical spine surgery and indemnity benefits. The claimant was in his mid-70s and had years of degenerative cervical spine issues and a compensable shoulder injury. His petition for additional compensation was denied as was the cervical spine surgery. Our termination petition was granted because the claimant was determined to be medically employable. The claimant’s temporary total disability was terminated as of the date of the Board’s decision. Kris presented a Labor Market Survey as to the issue of earning capacity, which was accepted. Partial disability was denied. As to the weight of evidence, our defense medical expert’s examination was credited as was Kris’s cross examination of the claimant and his spine surgeon. 

Kristopher Starr (Wilmington) successfully defended a motion to compel payment of disability benefits. Claimant’s counsel filed a this motion very late after the Board’s decision denying surgery and ongoing benefits. The motion was argued before the Board, and Kris argued it be denied on the basis of failure to properly move for re-argument or appeal within the statutory time periods. The Board agreed with Kris and denied the motion. 

*Prior Results Do Not Guarantee a Similar Outcome
 

_{What’s Hot in Workers’ Comp, Vol. 27, No. 7, July 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.}