.

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

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. 

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Result

Summary Judgment Obtained in Insurance Coverage Case

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Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

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.

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

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Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

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

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.

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