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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. 5, May 2022

May 1, 2022

NEWS

In the April 2022 edition of CLM Magazine, Niki Ingram (Philadelphia, PA), member of our firm’s Diversity, Equity & Inclusion Committee, discusses minority underrepresentation in the insurance industry and ways to attract and retain talent. Read now: https://lnkd.in/dYSczbGg. 
 

RESULTS*

Tony Natale (Philadelphia, PA) successfully prosecuted a termination petition on behalf of a Berks County mushroom facility post-lumbar surgery. Despite the claimant undergoing work-related lumbar laminectomy and discectomy surgery, the preponderance of the medical evidence presented by Tony supported full recovery without residual and no resultant functional impairment due to loss of disc.

Tony also successfully argued for full recovery on behalf of a Philadelphia-based transportation company. The claimant had severe injuries due to a motor vehicle collision that sent the company van over an embankment. Tony was able to convince the trial judge that all injuries had fully and completely recovered without residuals, including injuries to the claimant’s head, neck, shoulders and back.

Finally, Tony was able to garner a dismissal of a claim petition on behalf of a Berks County trucking company. While the claimant was hauling mushrooms, he felt dizzy and exited his vehicle. After an episode of syncope, the claimant was whisked away by ambulance and treated at two different facilities on an emergency basis and was then admitted to a hospital in Reading, Pennsylvania, for cardiac work-up. The claimant was disqualified from driving a truck and remained out of work. Tony convinced the court that the admission to the hospital and the resultant disability was not work-related and was specifically due to an alleged cardiac problem.

Michele Punturi (Philadelphia, PA) successfully prosecuted a termination petition on behalf a multi-national automotive manufacturing corporation. Michele presented the testimony of a board certified orthopedic surgeon, who not only conducted a comprehensive physical examination, but had the opportunity to review pre- and post-diagnostic study films, which demonstrated that the claimant did not sustain any injury that resulted in any structural or anatomic change that would have an impact on the natural clinical course of pre-existing spinal degenerative disease. This was further supported by an initial EMG that was completely normal and a later EMG showing radiculopathy, supporting that if the claimant had sustained any traumatic radiculopathy, it would have been detected on the first EMG. As such, the subsequent EMG findings were due to the underlying degenerative process. Further, on cross-examination, Michele emphasized that the claimant’s experts failed to review all the prior medical records and compare the diagnostic studies and failed to support opinions to expand the nature of injury beyond that which was found compensable in prior litigation. 

Kacey Wiedt (Harrisburg, PA) prevailed on a lengthy case on behalf of a trash collection company. The case involved testimony from seven employer witnesses, in addition to medical expert testimony. Kacey successfully defended all petitions pertaining to the claimant’s claim, including review and penalty petitions. This high-exposure case—the claimant had an average weekly wage of $2,846 with a maximum compensation rate—was the result of the claimant being terminated for failure to timely report a work-related injury as per company policy.

Judd Woytek (King of Prussia, PA) successfully prosecuted a termination petition and defeated the claimant’s review petition in a case where the claimant had been struck by a forklift. The Judge found that the claimant suffered nothing more than a right hip contusion and lumbar sprain/strain, from which he had fully recovered as of the date of the IME. The claimant’s review petition, seeking to expand the injury to include an aggravation of lumbar degenerative disc disease with lumbar radiculopathy, trochanteric bursitis of right hip and sacroiliitis, was denied.

Judd also successfully defeated a claim petition in which the claimant was alleging an aggravation of a pre-existing non-work-related concussion injury. The claimant withdrew her petition when it became clear that she would be unable to meet her burden of proof.

Judd successfully defended a claim petition where the claimant was seeking benefits for the time period he had to quarantine after a possible COVID-19 exposure. The claimant admitted that he never tested positive for COVID. The judge agreed with Judd’s argument that the claimant had, therefore, not suffered an injury or contracted an occupational disease under the Pennsylvania Worker’ Compensation Act. The claim petition was denied and dismissed.

Judd successfully prosecuted a petition to compel a claimant to undergo an MRI of his knee, which the claimant opposed due to allegedly having metal in his eye. The claimant admitted, however, that he had previously had MRIs performed. The judge directed the claimant to undergo x-rays of his eyes and, if clear, to undergo the MRI of the knee.

Judd successfully prosecuted a second petition to compel an IME where the claimant had refused to cooperate with the IME doctor’s office and complete informational questionnaires. He also brought a priest along to the IME. The judge ordered the claimant to attend the rescheduled IME and complete the requested questionnaires and forms.

Judd was partially successful in defense of a claim petition and in prosecution of a termination petition. The judge agreed with Judd’s argument that the claimant had failed to present any evidence of disability related to his October 2020 injury until the date of his shoulder surgery in February 2021. The judge also granted a partial termination of benefits with regard to the claimant’s cervical and lumbar injuries.

Finally, Judd was successful in defending a claimant’s appeal from a judge’s decision which denied the claimant’s claim petition, denied the claimant’s utilization review petition and granted the termination petition related to a medical-only NCP. The Appeal Board affirmed the judge’s decision in its entirety by crediting Judd’s arguments raised at oral argument and in his brief.

*Prior Results Do Not Guarantee A Similar Outcome


 

What’s Hot in Workers’ Comp is prepared by Marshall Dennehey Warner Coleman & Goggin 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 Warner Coleman & Goggin, 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

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

Marshall Dennehey Shareholders Recognized as Florida Trend Legal Elite Notable Women Leaders in Law

News

Marshall Dennehey Shareholders Recognized as Florida Trend Legal Elite Notable Women Leaders in Law

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

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

News

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

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

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.

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. 

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.

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.

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage Case