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.}