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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. 26, No. 12, December 2022

NEWS
At our firm’s annual shareholder meeting held on December 6th, Ben Durstein (Wilmington) and Kelly Scifres (Jacksonville) were elected as Shareholders.

Angela DeMary (Mount Laurel) spoke at the 33rd Annual New Jersey Workers’ Compensation Bench-Bar Conference on December 13, 2022. Her presentation was titled “Moving Forward Together in a Time of Change.”

Bill Murphy (Roseland) authored “To Be or Not To Be: The Independent Contractor Versus Employee Debate Continues,” which was published in the December 2022 issue of CLM Magazine. You can read the article here: https://736506f6.flowpaper.com/CLMDecember2022/#page=16 

On November 29, 2022, Michael Sebastian (Scranton) presented “Workers' Compensation Best Practices” at the Northeastern Pennsylvania Industrial Resource Center (NEPIRC) Executive Meeting.

Frank Wickersham (King of Prussia) will be speaking at the January 24, 2023, National Workers’ Compensation Insurance ExecuSummit. To see Frank’s presentation, “State of the Union – Medical Marijuana,” in person, you can register at: http://www.workerscompconference.com/ 
 

RESULTS*

Audrey Copeland (King of Prussia) convinced the Commonwealth Court to affirm a workers’ compensation judge’s decision to deny the claimant's petition to review a Utilization Review (UR) determination, and to reject the claimant's argument that the judge was barred by the rules of collateral estoppel and issue preclusion from ruling on UR petitions.

Audrey Copeland (King of Prussia) persuaded the Pennsylvania Supreme Court to deny the claimant’s petition for allowance of appeal in a workers’ compensation matter where the claimant challenged the constitutionality of Act 111 and its Impairment Rating Evaluation (IRE) provisions.

Keri Morris-Johnston (Wilmington) successfully defended a claim for a total knee replacement following a compensable knee injury. Keri argued the treatment was neither reasonable nor necessary because the claimant failed to attempt conservative care. The Industrial Accident Board agreed and denied the benefits.

Keri Morris-Johnston (Wilmington) successfully defended a COVID-19 claim involving a registered nurse. The plaintiff alleged she was exposed to COVID-19 while caring for a patient and infected both of her adult sons. One son died from COVID-19. Keri argued that COVID-19 was not an occupational disease and that she could not establish she contracted COVID-19 at work. The Industrial Accident Board agreed, resulting in a significant win for the employer.

Tony Natale, with the aid of Paralegal, Pamela Del Percio (Philadelphia), successfully prosecuted a suspension petition where the claimant refused to attend an Impairment Evaluation after receiving 104 weeks of indemnity benefits due to his injury. The court initially issued an order compelling the claimant’s attendance and the claimant maintained his refusal to attend the evaluation, citing to the fact that he was COVID positive and required to quarantine. Tony demanded that verification of the virus be made part of the evidence record. In response, claimant’s attorney submitted into the evidence record a COVID testing result which was an at-home test. Pam reviewed the testing result and found it was a fake—there was a pornographic image contained in the window of the positive testing result, and Pam determined through internet research that this fake test was being used all over the United States. The claimant’s attorney was unaware that the test was fake and maintained it as part of the evidence record. The court determined, based on the evidence, that benefits were suspended and actually concluded as a matter of law that the claimant committed fraud (a decision of first impression in Pennsylvania). A formal criminal fraud action will likely follow.

Judd Woytek (King of Prussia) obtained a suspension of benefits based upon a good faith offer of employment made by the employer, which the claimant refused. The claimant turned down the job and then quit. Therefore, the Workers’ Compensation Judge found in our favor and suspended benefits.

Judd Woytek (King of Prussia) obtained a termination of benefits on a claim where the claimant failed to appear and defend against our petition at three hearings.

Judd Woytek (King of Prussia) obtained a favorable outcome on a petition to review benefits filed by the claimant, seeking to increase her average weekly wage. The judge agreed with Judd’s argument that the average weekly wage was lower than originally calculated, based upon case law relating to the claimant being out of work for non-work-related conditions and remaining an employee of the employer during the year preceding the injury.

Judd Woytek (King of Prussia) obtained a termination of benefits on a claim that was accepted for a low back strain. However, the claimant had filed a review petition, seeking to expand the injury to include 10 disc herniations and two disc protrusions. The judge found completely in our favor, denied the claimant’s petition, and granted us a full termination of benefits as of the date of our IME.

Judd Woytek (King of Prussia) was successful in defending a Yellow Freight motion by establishing that the employer was never served with the notice of assignment of the claim petition to a judge. While the claimant’s attorney had properly served the claim petition itself on the employer, Judd correctly argued that it is the notice of assignment that triggers the employer’s obligation to file an answer within 20 days. Judd was able to prove that the employer’s address on the notice of assignment had the wrong zip code and that the employer was never served. Therefore, the judge found that the employer had a reasonable excuse for its late answer to the claim petition.

*Prior Results Do Not Guarantee a Similar Outcome

 

What’s Hot in Workers’ Comp, Vol. 26, No. 12, December 2022 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 © 2022 Marshall Dennehey Warner Coleman & Goggin, 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.

Event

CLM 2026 Focus Conference

Allison joins three insurance industry leaders to discuss how cyber coverage disputes, the growing impact of social inflation on bodily injury claim valuation, and the use of artificial intelligence are reshaping the bad faith landscape. The panel will examine emerging sources of extra-contractual exposure, including evolving cyber insurance coverage issues and the challenges of accurately valuing bodily injury claims. Practical approaches to claim evaluation using AI, along with defense strategies designed to help prevent or successfully defend against bad faith litigation, will also be addressed. 

Four Marshall Dennehey Attorneys Selected 2026 “Top Lawyers” by Delaware Today Magazine

News

Four Marshall Dennehey Attorneys Selected 2026 “Top Lawyers” by Delaware Today Magazine

Marshall Dennehey Welcomes Special Counsel David Farkouh and Michele P. Rannie to New York City Office

News

Marshall Dennehey Welcomes Special Counsel David Farkouh and Michele P. Rannie to New York City Office

Marshall Dennehey Announces 2027 Pennsylvania Super Lawyers and Rising Stars Honorees

News

Marshall Dennehey Announces 2027 Pennsylvania Super Lawyers and Rising Stars Honorees

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

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.

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.

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage Case

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter