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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. 4, April 2021

April 1, 2021

NEWS

Niki Ingram (Philadelphia) was a panelist at a recent webinar hosted by the Philadelphia Association of Defense Counsel. “How Women Judges and Lawyers Succeed During Challenging Times” featured an esteemed panel of women in the legal profession offering advice and sharing real life experiences on how to move forward while overcoming obstacles, juggling work life with personal life, and maintaining civility.

Kacey Wiedt (Harrisburg) was a featured speaker at the “Controlling Workers’ Compensation Costs” webinar hosted by the County Commissioners Association of Pennsylvania. During his presentation, “The Impact of COVID-19 on Workers’ Compensation in Pennsylvania,” Kacey discussed the importance of working together with clients during the pre-litigation phase to properly manage COVID-19 claims and mitigate risk. He also discussed the compensability of such claims and the importance of choosing the right medical expert.

Raphael Duran (Philadelphia) was a guest speaker on WPHT Talk Radio along with JB Dilsheimer of Stampone O’Brien & Dilsheimer and Geoff Dlin of Krasno Krasno & Onwudinjo. Raph and his fellow panelists discussed litigation styles (such as when to be a bulldog, and when to be cooperative) and how it impacts workers’ compensation cases. Various claims were discussed involving subrogation, catastrophic and minor claims. The effectiveness of various litigation styles, in the speakers’ respective specialties, was also debated.

Ashley Eldridge (Philadelphia) is speaking at the “Personal Injury Potpourri” webinar on April 20, hosted by The Dispute Resolution Institute. The daylong event will feature discussion on various topics, including recent case analyses, COVID-19 and workers’ compensation, new disciplinary rule regarding referral fees, Common Pleas update and much more. For more information, click here. 

Michele Punturi (Philadelphia) is speaking at the 2021 CLM Worker’s Compensation and Retail, Restaurant & Hospitality Conference to be held virtually on May 12-14. In “Changing the Employee Safety and Wellness Mindset to Reduce Workers’ Compensation Costs and Avoid Liability,” Michele is part of a panel discussion that will focus on changing the claims management mindset surrounding employee safety and wellness to drive down workers’ compensation costs and avoid liability exposure. Today’s litigious environment, particularly considering COVID-19, calls for an innovative approach that might include self-reporting programs and dedicated medical case management teams to help employers spot issues before they become costly claims. For more information, click here.

 

RESULTS*

Ashley Eldridge (Philadelphia) successfully defended a claim petition on behalf of a national communications carrier. The claimant was employed as a customer services representative who transitioned to a work-from-home position during the pandemic. While carrying computers into his house, the claimant fell, sustaining a patellar tendon tear, PCL tear, meniscus tears and bone contusions. Arguing that the injuries were work-related, the claimant presented evidence from several orthopedic surgeons. Ashley was able to demonstrate that the injuries were neither work-related nor sustained in the course and scope of his employment. The judge accepted the defense evidence as credible and denied the claim petition in its entirety.

Bob Fitzgerald and Jeremy Zacharias (Mount Laurel) were successful before Judge Bradley W. Henson, Sr., J.W.C., who rendered a decision in favor of Zurich North America. Maria Burgos v. 20 Horse Tavern involved a 2010 claim petition resulting from a knee injury sustained in a March 20, 2010, workplace accident. This claim was denied by Zurich as it did not provide workers’ compensation insurance coverage on the date of loss. Prior to the date of loss, 20 Horse Tavern retained a restaurant management company to handle all business-related issues for the restaurant, including obtaining workers’ compensation insurance coverage. However, based on certain representations made by 20 Horse Tavern regarding its business closure, the restaurant was not listed for coverage under the existing PMA Insurance’s workers’ compensation policy. When the restaurant management company obtained a renewal policy through Zurich, this policy did not include 20 Horse Tavern or its business address as a covered entity. Bob and Jeremy successfully argued that 20 Horse Tavern was never insured by Zurich since 20 Horse Tavern was taken off the workers’ compensation policy prior to Zurich ever taking over coverage.

Judd Woytek (Allentown) received a favorable decision denying and dismissing the claimant’s claim petition and granting our termination petition. The claim was accepted as medical-only for a low back strain. The claimant filed a claim petition seeking wage loss benefits after refusing a modified-duty job offer by the employer. Judd obtained an opinion of full recovery from our IME physician and filed a termination petition. The judge denied the claim petition and granted our termination petition, finding that the employer had made a good faith offer of employment within the claimant’s restrictions, which she refused to accept. Therefore, the claimant was not entitled to any wage loss benefits. The judge also found that the claimant fully recovered as of the date of our IME and terminated benefits completely as of that date.

Judd also received a favorable decision by the Department of Labor (DOL) denying a coal miner’s claim for benefits when the only evidence submitted by his widow was the death certificate listing severe chronic obstructive pulmonary disease (COPD) as the primary cause of death. The DOL claims examiner agreed with Judd’s position that the death certificate alone was insufficient evidence to sustain the claimant’s burden of proving that her husband had totally disabling coal workers’ pneumoconiosis during his lifetime. Benefits were denied.

*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

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

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. 

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage 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.

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

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.

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

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

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.