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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. 9, September 2022

September 1, 2022

NEWS

Please join us in welcoming shareholder Katherine E. Bavoso to the firm in our Harrisburg office. Katie brings 20 years of experience in defending employers, insurance carriers and third-party administrators in workers’ compensation claims, working together with her clients to achieve their desired result. Katie can be reached at 717-651-3538 or kebavoso@mdwcg.com.

The following attorneys from our Workers’ Compensation Department were named 2023 The Best Lawyers in America© - Workers’ Compensation Law – Employers:

  • Daniel Deitrick (Pittsburgh, PA)
  • Shannon Fellin (Harrisburg, PA)
  • Keri Morris-Johnston (Wilmington, DE)
  • Michele Punturi (Philadelphia, PA)
  • Michael Sebastian (Scranton, PA)
  • Francis Wickersham (King of Prussia, PA)

Michele Punturi’s (Philadelphia, PA) article “In Court: What’s New on the Medical Marijuana Front for Workers’ Compensation” was published by Risk & Insurance on August 8, 2022. You can read this article here: https://riskandinsurance.com/in-court-whats-new-on-the-medical-marijuana-front-for-workers-compensation/.

Frank Wickersham’s (King of Prussia, PA) article “Back to the Future: A Post-’Protz’ Primer on Pre-’Protz’ Law” was published by The Legal Intelligencer on August 11, 2022. You can read the article here: https://marshalldennehey.com/articles/back-future-post-%E2%80%99protz%E2%80%99-primer-pre-%E2%80%99protz%E2%80%99-law.

RESULTS*

Angela DeMary (Mt. 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 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 the 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.

Tony Natale (Philadelphia, PA) defended a Berks County mushroom facility in a very high-exposure alleged amputation/loss-of-leg case. The claimant sustained a severe laceration and tissue loss to one of his legs while inappropriately performing his job duties. Work was made available to the claimant after the injury, which he refused. The claimant then alleged that he lost his leg for all intents and purposes and demanded the court award specific loss benefits. Tony defended this case on factual and medical grounds. The court held that the claimant did not lose his leg and no specific loss benefits were awarded. Further, the court suspended indemnity benefits for the claimant’s failure to accept the job offer made to him after the injury. Significant exposure was totally eliminated.

Tony Natale (Philadelphia, PA) successfully prosecuted a termination petition on a 10-year-old back claim with open medical liability. The claimant had been treating with excessive use of narcotic medication. An orthopedic expert undertook an examination and found the claimant fully recovered from the work injury and noted that the use of narcotic medication was unrelated to the injury. During the litigation, the claimant presented a medical expert who opined he was still suffering from the work injury. On cross examination, the expert admitted that he was aware his treatment was made the subject of a utilization review and found unreasonable and unnecessary. He further admitted his intent to continue the claimant on narcotic medication, despite the UR Determination, and charge the insurer for his services. Additionally, he admitted to moving the claimant to other doctors in his office who were not subject to the UR Decision as a means of continuing the treatment cycle. The court found the claimant’s medical expert not to hold a scintilla of credibility. The court then terminated the claimant’s benefits.

Tony Natale (Philadelphia, PA) successfully defended a claimant’s appeal of a judge’s decision which terminated benefits based on a full recovery after a horrific trucking accident. The claimant’s attorney argued to the Appeal Board that his litigation costs should have been awarded since the claimant was successful in amending the nature of injury during the litigation and, therefore, earned reimbursement of costs. Tony argued, and the Board agreed, that the amendment to the nature of injury was stipulated to before the termination petition was prosecuted and no fees or costs were due and owing.

Judd Woytek (King of Prussia, PA) won a favorable decision from the District Director on a Federal Black Lung claim. The claimant had filed an application for benefits alleging 20+ years of coal mine employment and exposure to coal dust. The District Director found that the claimant had only proven four years of qualifying coal mining employment. The District Director also found that the claimant was unable to prove that he had developed coal workers’ pneumoconiosis or a totally disabling respiratory impairment.

Judd Woytek (King of Prussia, PA) won a favorable decision from an Administrative Law Judge on a Federal Black Lung claim. The judge credited the claimant with 11 years of qualifying coal mining employment, but found that the claimant had failed to prove a totally disabling respiratory impairment and, therefore, denied the claim. Judd presented evidence from our medical expert that the claimant did not contract coal workers’ pneumoconiosis as the result of his work in the coal mines and that he was not disabled by a respiratory impairment. The judge addressed the issue of total respiratory disability first and found that the claimant failed to meet his burden of proof with pulmonary function study, arterial blood gas study and medical opinion evidence. The judge credited the opinions of our medical expert over those of both of the claimant’s expert and the independent expert retained by the Department of Labor. The judge found no respiratory disability and, therefore, denied the claim.

*Prior Results Do Not Guarantee A Similar Outcome

 

What’s Hot in Workers’ Comp, Vol. 26, No. 9, September 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

Casey Alan Coyle Joins Marshall Dennehey's PA Appellate Practice as a Shareholder in Harrisburg and Philadelphia

News

Marshall Dennehey Expands Leading Pennsylvania Appellate Practice With Addition of Shareholder Casey Coyle

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. 

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

Thought Leadership

SIU Gets a Boost: NJ Supreme Court Affirms Insurers' Right to Litigate, Not Arbitrate, Fraud Claims

In a significant win for insurers' Special Investigation Units, the New Jersey Supreme Court clarified that statutory insurance fraud and racketeering claims may proceed in court rather than through PIP arbitration. At issue was whether insurance fraud claims brought under New Jersey's Insurance Fraud Prevention Act (IFPA) and the state's Anti-Racketeering Act (NJ RICO) are subject to mandatory arbitration under the Automobile Insurance Cost Reduction Act’s (AICRA) PIP dispute-resolution framework. Allstate had sued a network of medical practices, physicians, and related corporate entities, alleging a scheme to extract more than $1.7 million in PIP benefits through fraudulent and misleading billing. The trial court dismissed Allstate's complaint and compelled arbitration, reading AICRA's arbitration clause — which covers "any dispute regarding the recovery of... benefits" under PIP coverage, N.J.S.A. 39:6A-5.1(a) — as sweeping in fraud and racketeering claims along with routine benefit disputes. The Supreme Court affirmed the Appellate Division's reversal, adopting Judge Gilson's opinion below (480 N.J. Super. 566 (App. Div. 2025)) as its own reasoning. The Court held that IFPA and RICO claims fall outside the scope of AICRA's PIP arbitration mechanism because that "streamlined and specialized" process cannot grant the relief those statutes contemplate — treble damages, injunctive relief, broad discovery, and joinder of third parties — and because arbitrators lack authority to award compensatory or treble damages to an insurer. The Court also rejected the argument that Allstate's own Decision Point Review Plans independently compel arbitration, finding those plan provisions no broader than AICRA's own arbitration clause. Notably, the Court expressly disagreed with the Third Circuit's contrary holding in GEICO v. Mt. Prospect Chiropractic Center, 98 F.4th 463 (3d Cir. 2024), concluding it is not bound by that federal interpretation of New Jersey law. Insurers retain the right to pursue IFPA and RICO claims in the Law Division, with a jury trial. For SIU units and NJ insurance carriers, this decision is a significant win: it forecloses defense clinics' primary procedural tool for shunting fraud investigations into limited-scope PIP arbitration, where treble damages, RICO relief, and meaningful discovery were never realistically available. Carriers building cases against fraudulently structured clinics, straw-owned practices, or coordinated billing networks can now proceed with confidence that a well-pleaded IFPA/RICO complaint stays in the Law Division rather than being diverted to arbitration on a motion to compel. Practically, this strengthens SIU's leverage in settlement negotiations, preserves civil discovery tools (subpoenas, depositions, joinder of related corporate entities) critical to unwinding complex ownership and referral schemes, and resolves the split with the Third Circuit in favor of NJ insurers — at least as a matter of state law. Expect increased reliance on IFPA civil actions, rather than PIP arbitration demands, as SIU's primary enforcement vehicle going forward.

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

News

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

empty courtroom photo

Result

Summary Judgment Secured for Life Insurance Agent

Thought Leadership

Congress Passes Financial Exploitation Prevention Act

On June 25, 2026, the House passed the Financial Exploitation Prevention Act of 2025 (“the Act”) by a vote of 414 to 2. The Act allows financial advisors and firms to delay suspicious transactions regarding the accounts of clients who are 65 or older, if they believe financial exploitation has occurred or is about to take place. With the advancement of technology and AI, the House’s overwhelming bipartisan passage of the Financial Exploitation Prevention Act represents an important step in strengthening the financial industry’s ability to combat the growing threat of elder financial exploitation. The Act recognizes what advisors have long known that financial professionals are often the first to detect suspicious behavior but have historically lacked clear legal authority to intervene before irreversible financial harm occurs. From the industry’s perspective, the bill accomplishes several important objectives, including the following: (1) Provides a practical “pause button” by allowing financial professionals to temporarily delay certain transaction requests when there is a reasonable belief that a senior or vulnerable adult is being financially exploited; (2) Empowers financial professionals to act by providing greater certainty that firms can act in good faith to protect clients without unnecessary legal risk; and (3) Strengthens investor protection without sacrificing client rights by allowing temporary delays based on a reasonable suspicion of exploitation, which is intended only to allow additional review and not to deny clients access to their money indefinitely. In sum, the Financial Exploitation Prevention Act will equip financial professionals with practical, carefully tailored tools to stop suspected financial exploitation before client assets are lost. By allowing firms to temporarily delay suspicious transactions under defined circumstances, Congress is recognizing the critical role advisors play as the first line of defense against increasingly sophisticated fraud schemes. The Act strikes an appropriate balance between protecting vulnerable investors and preserving individual financial autonomy, while reinforcing collaboration among advisors, families, and law enforcement to combat financial exploitation. The bill now awaits Senate action.

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.

Portrait of Carolyn Schweizer, with text below: Philadelphia Office Managing Attorney

News

Marshall Dennehey Names Carolyn Schweizer New Philadelphia Office Managing Attorney

Thought Leadership

New Jersey Expands Family Leave Protections Effective July 17, 2026

On January 17, 2026, Governor Murphy signed into law legislation expanding the New Jersey Family Leave Act (NJFLA). Beginning July 17, 2026, significant amendments to the NJFLA will expand job-protected family leave to smaller businesses and more employees across the state. The new law broadens coverage by lowering the threshold for private employers from 30 employees to 15 employees, meaning many smaller businesses will now be subject to the NJFLA. Employees of state and local government agencies will continue to be covered regardless of the size of the employer. The amendments also make it easier for employees to qualify for leave. Under the revised law, an employee will be eligible after three months of employment and at least 250 hours worked during the preceding 12 months, replacing the previous requirement of 12 months of employment and 1,000 hours worked. Currently, New Jersey's Temporary Disability Insurance (TDI) and Family Leave Insurance (FLI) programs provide eligible employees with wage replacement while they are on leave but do not independently guarantee job protection. The recent amendments to the New Jersey Family Leave Act (NJFLA) expand these protections by extending job-protected leave to additional employees. Under the amended law, employees receiving TDI or FLI benefits may be entitled to return to the same position they held before taking leave, or to an equivalent position with the same seniority, status, pay, and benefits. Although the legislation also states that it does not expand or modify an employee's reinstatement rights under the NJFLA, the amendments appear to provide job protection to eligible employees receiving TDI or FLI benefits without requiring them to separately satisfy the eligibility requirements of the NJFLA or the federal Family and Medical Leave Act (FMLA). As a result, some employees may be entitled to longer periods of job-protected leave than were previously available under existing law. With these amendments, New Jersey continues to strengthen workplace protections by expanding access to job-protected family leave for eligible employees. These changes significantly expand access to job-protected family leave and may require employers to update their leave policies, employee handbooks, and HR practices. Notably, employers who were previously not required to administer NJFLA may need to amend their policies and/or create new protocols to come into compliance with the NJFLA. Failure to do so would prove costly, as the penalties for non-compliance are significant.