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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. 11, November 2022

November 1, 2022

NEWS

Two attorneys from our Workers’ Compensation Department were selected 2022 “Top Lawyers” by Delaware Today Magazine. Congratulations to Keri Morris-Johnston and Benjamin Durstein of our Wilmington, Delaware, office.

Alex Possino’s (Pittsburgh) article “Navigating Uncharted Territory: How to Avoid Danger Zones in the Evolving Landscape of Medicaid Liens” was published in the September 2022 edition of CLM Magazine. You can read the article here.

Andrea Rock’s (Philadelphia) article “Can you add Andrea’s article: When Filing a Petition Can Result in an Award of Attorney Fees” was published in The Legal Intelligencer on October 6, 2022. You can read the article here.
 

RESULTS*

Ben Durstein (Wilmington) successfully handled a case on behalf of the State of Delaware where the Industrial Accident Board denied the claimant’s petition to determine compensation due in its entirety. The Board reasoned that there was no objective evidence of an injury and the claimant’s subjective complaints were not credible.

In another matter handled by Ben, the Industrial Accident Board granted the employer’s motion for reargument in part. Specifically, the Board agreed with Ben that the employer’s offer, made 30 days prior to the hearing, was equal to or greater than the Board’s award in all respects, except it did not include an offer for a medical witness fee. The attorney fee was reduced from $5,000 in the initial decision to 30% of the claimant’s medical expert’s fee (which is capped at $2,000). 

Tony Natale (Philadelphia) successfully prosecuted a termination petition and defended a review petition (challenging the nature of injury) on behalf of local professional veterinary clinic. The claimant was injured when a large dog pulled her down during a walk. Injuries to the claimant’s shoulder were accepted as compensable. The claimant treated for her shoulder for a period of time and then stopped. Nearly a year later, she re-initiated treatment for her shoulder and added the neck to the equation with potential surgery. The matter entered litigation on the issues of full recovery and the efficacy of additional injuries. The court accepted defense evidence supporting a full recovery and rejected any new injuries.

Tony also successfully proved that the claimant of a Berks County mushroom facility refused available employment within her physical restrictions. The claimant sustained injuries to various body parts, including her neck. A job offer was made to the claimant for a visual inspection position that required no physical duties. The claimant refused the job, alleging that visually inspecting product would aggravate her neck symptoms. Tony was able to submit into evidence a video depicting the job in question and presented medical evidence documenting the claimant’s ability to return to the position. The court accepted all defense evidence as the most credible and found the claimant refused available employment in bad faith.

Rachel Ramsay-Lowe (Roseland) successfully excluded the cervical spine from an established claim. The claimant injured the lumbar spine and at home alleged he passed out from the lumbar spine pain, causing a neck injury. Rachel presented hospital records revealing no injury to the cervical spine and that the claimant did not seek any medical treatment to the cervical spine until seven months after this alleged incident.

Kristopher Starr (Wilmington) handled a case where the claimant had been awarded medical expenses for an acknowledged spinal impairment. The claimant had undergone nine surgeries and presented testimony of two treating physicians, an orthopedic surgeon and a pain management physician. Kris successfully convinced the Board to award the employer a termination of temporary total disability benefits. The claimant was also denied a finding of displaced worker status. The claimant’s change from permanent impairment to RUE reduced from 60% to 33% the rating based on the employer’s expert. However, the Workers’ Compensation Fund filed a motion for reargument. Kris has filed the employers’ response, and we await the Fund’s decision.

Kris also successfully handled a case on behalf of a logistics company where the claimant filed a petition for disfigurement. The claimant alleged anterior neck surgical scarring, with a profoundly altered gait, and had demanded 90 weeks of disability. The Board awarded only 16 weeks. 

Judd Woytek (King of Prussia) was successful in defending a review petition in which the claimant was seeking to expand the description of injury to include major depressive disorder and general anxiety disorder. The claimant had contracted COVID in the workplace and believed she gave it to her husband who subsequently passed away. She also sought penalties for failure to pay for psychiatric treatment. The Workers’ Compensation Judge denied and dismissed the claimant’s petitions. 

In another review petition case, Judd was successful in defending an appeal of a decision in which the judge had denied the claimant’s review petition to expand the injury, in part, and did not award litigation costs to the claimant’s attorney relating to their unsuccessful petition. Based upon Judd’s arguments, the Appeal Board affirmed the judge’s decision in its entirety.
 
In a third matter, Judd successfully limited a claim for a foot and ankle injury to a closed period of less than four months. The judge found our expert credible and terminated benefits as of the date of our IME resulting in saving thousands of dollars for medical treatment the claimant had received after the date of the IME/date of termination of benefits.

*Prior Results Do Not Guarantee A Similar Outcome
 

What’s Hot in Workers’ Comp, Vol. 26, No. 11, November 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, 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

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. 

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

News

Marshall Dennehey Again Earns Recognition in Distinguished Chambers USA

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

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

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.

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.

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

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

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.