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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. 25, No. 11, November 2021

November 1, 2021

NEWS

Ryan Hauck’s article “Raymour Decision Benefits Insurers and, Arguably, Claimants,” was published in the October 7, 2021, edition of The Legal Intelligencer. 

Tony Natale’s (Philadelphia, PA) article “The State of Pay-For-Play: College Athletes as Employees and the Implications for Workers’ Compensation,” was published in CLM Magazine, September 2021.

Congratulations to Katelynne Storey (Jacksonville) who was recently inducted into the E. Robert Williams American Inn of Court. The Inn is composed of lawyers, judges, mediators, and law students who are significantly involved in the workers’ compensation area of law in Jacksonville, Florida. 

 

RESULTS*

Angela DeMary and Kyle Byard (Mount Laurel, NJ) successfully obtained a complete dismissal with no payment on a medical provider petition. They argued lack of jurisdiction based on the recent Appellate Division’s consolidated decisions of Anesthesia Associates of Morristown v. Weinstein Supply and Surgicare of Jersey City v. Waldbaum’s, Nos. A-5033-18T4, A-5718-18T4 (App. Div. October 7, 2020)(cert denied, April 1, 2021). Despite opposing counsel’s attempts to distinguish the issues of the instant matter from the recent case law, the court rejected the arguments and granted the complete dismissal of the claim with prejudice.

Ashley Eldridge (Philadelphia, PA) obtained two successful appellate verdicts on challenges to defense opinions before the Workers’ Compensation Judge. 

In the first case, the judge denied a claim petition in which the claimant alleged a significant shoulder injury. Ashley successfully argued that an injury did not occur while at work and, secondarily, that any injury and surgery were the result of a pre-existing condition. The claimant attempted to argue that the decision was not supported by substantial, competent evidence, although the Appeal Board found the judge’s findings and conclusions to be legally sufficient.

The second case also involved a claim petition alleging injuries and disability beyond an acknowledged L2-3 transverse process fracture. After reviewing the substantial evidentiary record, the judge did not find the claimant or his evidence to be credible. The petition was denied beyond a limited period of disability. On appeal, the claimant attempted to argue that the judge failed to consider evidence, which the Appeal Board dismissed.

Adam Huber and Angela DeMary (Mount Laurel, NJ) were successful in obtaining an order for dismissal before Judge Gallagher in the Mount Holly workers’ compensation court. In his claim petition, the petitioner alleged permanent disability as a result of contracting COVID-19 while working for the insured. The petitioner alleged that while working an auto hauler he was exposed to COVID-19, which resulted in a permanent pulmonary disability. Adam and Angela successfully argued to the judge that the petitioner’s discovery failed to provide sufficient proofs supporting that the petitioner had COVID-19 or that, if he did, it was “related to his job.”

Tony Natale (Philadelphia, PA) successfully defended one of Pennsylvania’s largest turkey processing plants in a million dollar amputation claim. The claimant alleged that due to an alleged exposure to turkey blood and feces at the workplace, he developed an infection in his foot that led to amputation of his leg. The claimant alleged a specific loss of the leg, total disability due to injuries separate and apart from the loss, and disabling psychological injuries. Tony was able to prove through the use of an infectious disease expert that the claimant’s leg amputation was caused by an underlying venous insufficiency and infection stemming from years of uncontrolled diabetes. Tony was also able to force the claimant to admit on cross examination that he failed to provide proper notice of a work-related injury within the meaning of the Workers’ Compensation Act. The claimant was done in by his own execution of a fee agreement with counsel at or near the time of his injury, which wholly undermined his earlier testimony that he had no inkling of his condition being work-related until filing his claim petition nearly three years after the date of injury. 

Tony Natale also successfully defended a Berks County mushroom harvesting company in a case of relative first impression in Pennsylvania. The claimant sustained a work-related injury to the right shoulder. She underwent surgery and was released to modified duty. The employer offered her a modified job. The claimant returned to work and continued at restricted duty. She was ultimately found to be fully recovered by a renowned Philadelphia shoulder surgeon. Tony then filed a termination petition, alleging full recovery of the right shoulder. The claimant responded by filing a claim petition, alleging a new injury to the opposite shoulder that totally disabled her from employment. After cross examining the claimant, it was determined that she purposely exceeded her work release restrictions upon return to work, despite the employer’s directive to the contrary. The claimant alleged that her voluntary acts exceeding her restrictions caused her new injury. The judge ruled that the claimant was not in the course and scope of employment when she exceeded her restrictions and her alleged injuries to her left shoulder were degenerative, not work-related. The judge also found the claimant to be fully recovered from the previously accepted right shoulder injury.

Michele Punturi (Philadelphia, PA) and Audrey Copeland (King of Prussia, PA) obtained two successful appellate verdicts before the Commonwealth Court.

In the first case, they defended a well-known local hospital where the judge denied the employer’s termination petition. Michele and Audrey challenged the claimant’s medical expert, who could not establish through substantial competent evidence that the claimant was not fully recovered from a cervical spine injury.

In the second case, involving a medical only notice of compensation payable, the claimant filed a claim petition and the employer filed two termination petitions based upon an amended opinion of the defense medical expert, a board certified orthopedic surgeon. Michele and Audrey challenged the claimant’s evidentiary arguments and failure to establish that the judge was biased and that the second termination petition was barred by res judicata. 

Michael Sebastian (Scranton, PA) successfully handled a case where, prior to our representing the defendants, a third party case had been resolved on February 28, 2019, for $1,250,000. On June 2, 2020, the claimant filed a review petition requesting the judge to adjudicate the subrogation lien since the defendants did not resolve the lien via a third party settlement agreement. The defendants continued to pay full indemnity benefit to the claimant in the amount of $573.02 until the third party settlement agreement was finalized on August 19, 2020. The parties calculated that the claimant’s future indemnity payment would be $200.22 per week. Claimant’s counsel required that the third party settlement agreement be calculated as of the day of the settlement in February 2019. He would not agree that claimant was overpaid indemnity benefits from the date of the settlement through August 19, 2020. Claimant’s counsel alleged waiver of the overpayment by failing to timely resolve the issue. The judge opined the claimant was not overpaid and that we would actually recoup the overpayment in future payments, but 20 months later in time. The Workers’ Compensation Appeal Board reversed, finding that the employer overpaid the claimant, and remanded the case to the judge with instructions to calculate the subrogation lien as of the date of the parties entered into the third party agreement. The Board found no explanation in the record for the delay in finalizing the third party agreement. This increased the subrogation lien for not only the indemnity payment but any medical payment made after February 28, 2019, and before August 19, 2020. 

*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 © 2021 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

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.

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage Case

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

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.

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

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

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.

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

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