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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. 9, September 2021

September 1, 2021

NEWS

Shannon Fellin (Harrisburg) was selected a 2022 “Lawyer of the Year” for Harrisburg, Workers’ Compensation Law – Employers by Best Lawyers in America©. The designation reflects the high level of respect a lawyer has earned among other leading lawyers in the same communities and the same practice areas for their abilities, professionalism and integrity. Our additional Best Lawyers in America in the area of workers’ compensation include Daniel Deitrick (Pittsburgh); and Ashley Eldridge (Philadelphia) and Ryan Hauck (Pittsburgh) were recognized as Best Lawyers: Ones to Watch. Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For more information, please visit https://www.bestlawyers.com/.

Frank Wickersham (King of Prussia) authored the article “Blurred Lines: A Breakdown of Conventional Workplace Boundaries During the Pandemic,” which was published in the Pennsylvania Law Weekly. You can read the article here: https://marshalldennehey.com/articles/blurred-lines-breakdown-conventional-workplace-boundaries-during-pandemic. 

Robin Romano (Philadelphia) participated in a panel discussion, “Emotional Intelligence: The Art of Friendly Persuasion,” held by the Philadelphia Bar Association’s Workers’ Compensation Section on August 20, 2021.
 

RESULTS*

Keri Morris-Johnson (Wilmington) successfully defended a claim where the Delaware Superior Court affirmed the Industrial Accident Board, arguing the claimant was not in the course and scope of employment when the injury occurred. 

Tony Natale (Philadelphia) successfully defended a regional energy efficiency service agency in a claim petition wherein the claimant attempted to use the COVID pandemic to support payments of disability. The claimant alleged that a work-related auto accident disabled him from employment at the time he was subject to an economic lay-off due to the pandemic. Tony convinced the court that at the time of layoff, the claimant was capable of performing his pre-injury job duties despite alleged restrictions due to his motor vehicle accident. The judge also found the claimant completely recovered from the work injury during the pandemic lay off and that the claimant demonstrated no good reason for his failure to return to work once the pandemic restrictions dissipated. 

Tony Natale successfully defended an appeal that terminated and suspended benefits for injuries to the claimant’s head, neck, and back while in the course and scope of employment with a Berks County mushroom farm. The central allegation on appeal was that the claimant had a reasonable excuse to continue to miss work despite being released to return to work by various experts. The claimant argued that obligations to sick members of his family trumped the employer’s request for him to return to work. The appeal was dismissed in its entirety based on Tony’s argument that the claimant attempted to undermine credibility determinations made by the judge regarding medical experts and further tried to amend the Workers’ Compensation Act by changing the law as to refusal of available employment.

Tony Natale successfully prosecuted a termination and suspension petition on behalf of a Berks County food distributor in a case involving a claimant’s abandonment of available employment and ultimate full recovery from an accepted work injury. Tony was able to use the claimant’s own treating physician to certify that she was fully recovered from her work-related injuries and that she was fully capable of continuing to work in a job position that she unceremoniously abandoned without just cause. 

Tony Natale successfully defended a Berks County canning corporation in a claim petition involving a thumb injury with subsequent discharge from employment due to abandonment of open and available work. The claimant continued to work his full-duty job despite the injury until he was discharged for cause for walking off the job. The claimant tried to convince the court that he left work due to “high blood pressure” issues and was entitled to disability benefits. However, fact witnesses from the employer thoroughly disputed this allegation. The claimant then underwent surgery and as a result alleged entitlement to benefits. The employer presented fact witness testimony confirming that one-armed work was available to the claimant despite his surgery had he not been discharged for cause for job abandonment. 

Michele Punturi (Philadelphia) successfully defended an appeal before the Commonwealth Court by challenging 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.

Michele Punturi (Philadelphia) successfully defended an appeal before the Commonwealth Court challenging the claimant’s evidentiary arguments and failure to establish the judge was biased and that the second termination petition was barred by res judicata.

Rachel Ramsey-Lowe (Roseland) successfully defended an appeal where the judge found the claimant not credible and found the claimant’s expert not competent, as he relied upon an incomplete medical history. 

Andrea Rock (Philadelphia) successfully defended a claim by limiting liability to 14 months of benefits based upon strong medical expert testimony. The claimant filed a claim petition alleging that she sustained a contusion to the back of her head, a concussion, bilateral shoulder pain and neck pain. The judge found the claimant credible and that an incident did occur in the course and scope of her employment. However, the judge also found the employer's medical expert credible. The employer's medical expert found that the claimant was fully recovered as of the date of the Independent Medical Examination. This limited the receipt of indemnity and medical to fourteen months, rather than an ongoing claim.

Robin Romano (Philadelphia) successfully prosecuted multiple petitions. They included a petition to terminate benefits regarding an accepted and infected lower leg laceration, a petition to review to expand the nature of injuries on the notice of compensation payable to include the lower back, a petition to review the average weekly wage, two utilization review petitions regarding treatment to the low back, and a petition to modify and suspend based upon the claimant's return to work without the knowledge of the carrier. Also at issue were two penalty petitions, one alleging late wage loss payments, which, after testimony by the adjuster, was dismissed by the judge as baseless. 

John Swartz (Harrisburg) successfully defended an appeal from a decision denying the claim petition for total disability benefits based upon competent medical expert testimony.

*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.

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.

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

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

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

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. 

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

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Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

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Result

Summary Judgment Obtained in Insurance Coverage Case

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case