.

What's Hot in Workers' Comp

What's Hot in Workers' Comp - News and Results*

What’s Hot in Workers’ Comp, Vol. 26, No. 10, October 2022

October 1, 2022

NEWS

Angela Y. DeMary (Mount Laurel, NJ) recently presented a client seminar on “New Jersey Workers’ Compensation in a Nutshell: Overview of Handling New Jersey Workers’ Compensation Claims”. Presented on August 25, she discussed various topics from claims investigation strategies to navigating the New Jersey workers’ compensation system.

Shannon Fellin (Harrisburg, PA) and Michele Punturi (Philadelphia, PA) presented two client seminars on the “Pennsylvania Workers’ Compensation Bureau Forms and Limiting Claim Exposure.” They discussed the mechanism and use of the Bureau forms and strategies for claims handling.

Tony Natale and Robin Romano (Philadelphia, PA) were co-presenters at this year’s Philly I-Day conference. Their session, Hot Topics in Worker’s Comp and Litigation Trends, focused on trends and case law that are making waves in Pennsylvania workers’ compensation litigation, including unreasonable contest, discharge from employment issues within a workers’ compensation case, head injuries with post-concussion syndrome, and specific loss and extension to full body. Robin and Tony analyzed the impact of these cases on future similar litigation, and provided tips for mitigating exposures and liabilities from a risk management perspective. The presentation was attended by local insurance, claims and legal professionals.

Tony Natale (Philadelphia, PA) recently sat down with AM Best’s Insurance Law Podcast to discuss workers’ compensation fraud. Listen to the podcast here: https://lnkd.in/eTMvMkVe.

 

RESULTS*

Angela DeMary (Mount Laurel, NJ) and William Murphy (Roseland, NJ) successfully obtained a dismissal for lack of jurisdiction and coverage for an occupational accident policy carrier. The petitioner filed a claim petition within the New Jersey Division of Workers’ Compensation seeking benefits and alleging employment with a trucking company. However, the petitioner had previously obtained an occupational accident policy in the role of an independent contractor. When filing the workers’ compensation petition, counsel for the petitioner erroneously named the occupational accident policy carrier as carrier for the trucking company. Although it would appear clear that jurisdiction and coverage do not exist in such cases, most times it is a lengthy process to have such matters addressed by the court and ultimately dismissed. However, Angela and Bill were successful in obtaining the dismissal and ceasing further unnecessary financial costs to the client.

Ben Durstein (Wilmington, DE) successfully handled a number of workers’ compensation cases. In Bruce Mosley v. State of Delaware, the Industrial Accident Board granted the employer’s motion for reimbursement of an amount of total disability benefits tendered that were offset by contemporaneous short-term disability payments. The Board denied the claimant’s motion to compel production of paystubs that he claimed were required to determine the appropriate offset amount, if any. The Board reasoned that the information provided was sufficient to calculate the overpayment amount and that the Fair Labor Standards Act did not require the pay records be kept in any particular form.

In Melissa Taylor v. State of Delaware, the Industrial Accident Board denied a claimant’s petition to determine additional compensation for increased medical bill payments for ketamine infusion procedures. The Hearing Officer rejected the claimant’s argument that she was entitled to the “reasonable cost” of the treatment pursuant to Section 2322(b) and held that the employer had correctly applied and paid for the treatment in accordance with the Delaware Fee Schedule pursuant to Section 2322B(7).

Finally, in Tracy Matheus v. State of Delaware, the Industrial Accident Board determined that the claimant’s cervical strain and lumbar strain injuries resolved as of January 24, 2022. The Board reasoned that the claimant was not pain free from preexisting issues prior to the work accident, that there was no indication of radiculopathy immediately after the work accident, and that her ongoing problems were localized to the levels of her spine adjacent to prior fusion surgeries, which indicated she was treating for her preexisting condition rather than the injuries sustained at work.

Michele Punturi (Philadelphia, PA) successfully defended claimant’s appeal of the judge’s decision terminating benefits based upon a full recovery opinion on behalf of a multi-national automotive manufacturing corporation. The claimant argued to the Appeal Board that the judge’s decision was not supported by substantial, competent evidence. The claimant argued that the employer did not establish a change in physical examination from the time of the last disability adjudication. Michele argued, and the Appeal Board agreed, that the defense expert’s opinion (a board certified orthopedic examination, three examinations of the claimant, the most recent comprehensive exam and his review of medical records and diagnostic films) supported a change in physical examination such that the claimant had no objective findings in relation to the work injury, non-work-related conditions and no need for any ongoing medical treatment. Further, the Appeal Board found the judge did not accept as credible the claimant’s testimony or the medical evidence submitted by the claimant. The Appeal Board ultimately concluded that the judge did not err in finding that the defense met the change in condition standard per Lewis v. WCAB (Giles and Ransome, Inc.), 919 A.2d, 922 (Pa. 2007) and Delaware County v. WCAB (Browne), 964 A.2d 29, 33-34 (Pa. Cmwlth. 2008).

Michele Punturi (Philadelphia, PA) successfully defended a claim petition on behalf of a well-known local hospital. The judge’s decision was based upon a full recovery opinion by a Board Certified orthopedic surgeon, who was found credible, competent and persuasive given his credentials; clear, concise and credible understanding of the claimant’s extensive history; review of post- and pre-injury records; along with his review of the diagnostic study films supporting no post-traumatic abnormalities. Based upon this strong medical expert testimony, the judge limited the claimant’s claim to a period of three months only, despite the claim for ongoing total disability, and did not expand the claimant’s nature of injury to include a herniated disc in the lumbar spine. In addition to expert deposition testimony, surveillance was also submitted and accepted, which demonstrated the claimant’s activities contrary to any ongoing disability and, more importantly and just as significant, were extensive medical records demonstrating that the claimant downplayed her prior injuries and her complaints, completely inconsistent with the actual medical records. Further, the judge recognized Michele’s cross-examination of the claimant’s medical expert, particularly with respect to his credentials, analysis of the MRI, lack of identifying a herniated disc diagnosis in all of his medical records, yet testifying to same in an effort to support the claimant’s alleged allegations of this description of injury.

Michele Punturi (Philadelphia, PA) successfully prosecuted a termination petition on behalf of a multi-national retailer. Michele established that the claimant fully recovered from the work-related right shoulder strain/sprain, although the claimant testified to ongoing complaints of pain and an injury beyond a sprain/strain. Michele’s medical evidence from a Board Certified orthopedic surgeon supporting a comprehensive physical examination, revealing no objective findings, along with his review of diagnostic studies that did not support any additional injury beyond a sprain/strain. Instead, this defense expert found a longstanding condition no longer related to the work injury and no evidence of an exacerbation/aggravation of the pre-existing condition. The claimant failed to submit any contrary medical evidence. As a result, the carrier/employer will be entitled to Supersedeas Fund reimbursement for all medical and indemnity paid from the date the termination petition was filed, which will be a sufficient monitory recovery on behalf of the employer.

Judd Woytek (King of Prussia, PA) obtained a favorable decision denying the claimant’s claim petition which alleged a low back injury, including sprain/strains and intervertebral disc displacement status post multiple surgeries. The claimant had a lumbar laminectomy in 2016 and a lumbar fusion in 2018. He alleged a work injury in April 2019 when emptying a small trash can into a dumpster. During the course of the litigation, however, the claimant and his doctor offered testimony that the claimant’s back problems, including the 2016 and 2018 surgeries, were related to his general employment duties with the employer and that the April 2019 incident was the “straw that broke the camel’s back.” Judd presented expert medical testimony from an orthopedic surgeon that the claimant’s back problems were degenerative in nature and were not caused by or aggravated by the claimant’s work activities or the alleged April 2019 incident. The judge denied the claim petition outright and found that the claimant had failed to sustain his burden of proving any work-related injury.

*Prior Results Do Not Guarantee A Similar Outcome

 

What’s Hot in Workers’ Comp, Vol. 26, No. 10, October 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

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. 

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

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.