Thought Leadership

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.}