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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. 3, March 2021

March 15, 2021

NEWS

On March 11, Niki Ingram (Philadelphia) was an invited speaker for the Philadelphia Association of Defense Counsel’s “How Women Judges and Lawyers Succeed During Challenging Times.” Niki joined an esteemed panel of judges and lawyers offering advice on how to move forward, while overcoming obstacles, juggling work life with personal life and maintaining civility.

Ashley Eldridge (Philadelphia) is speaking at the “Personal Injury Potpourri” webinar on April 20, hosted by The Dispute Resolution Institute. The day-long event will feature discussion on various topics, including recent case analysis, 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 Workers’ 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 will be 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.

Michele Punturi (Philadelphia), Tony Natale (Philadelphia), Jessica Julian (Wilmington) and Ben Durstein (Wilmington) presented the webinar “Workers’ Compensation Winter Roundup” for Pennsylvania and Delaware claims professionals. The webinar addressed current issues in workers’ compensation, including IREs and the use of TNCPs in Pennsylvania, and Medical Only Agreements and use of the Employer Form in Delaware. A recent Delaware case that is the first COVID-19 decision to come down in the state was also discussed.

 

RESULTS*

Kacey Wiedt (Harrisburg) was successful in prosecuting a modification petition, changing the claimant’s indemnity benefits from temporary total to partial disability based upon a labor market survey. After showing that the claimant had an earning power based upon the labor market survey, the judge modified the claimant’s future indemnity benefits, even though the claimant was unemployed due to the accepted work-related back injury. Kacey was also successful in defending the claimant’s review petition to expand the nature of his injury from the acknowledged injury of a lumbar sprain even though the claimant had a permanent spinal cord stimulator implant in his back.

In another matter, Kacey prevailed on a claim petition, defending his client, a bedding company, on a claim petition which alleged that the injured worker sustained upper extremity injuries as a result of her sewing position. Kacey was able to show through medical evidence and the employer’s testimony that the claimant failed to provide notice of the injury in a timely fashion and that the claimant was neither credible nor persuasive that she sustained a repetitive trauma injury as a result of her job duties.

Kacey obtained a favorable decision from the Workers’ Compensation Appeal Board, reversing the underlying judge’s decision pertaining to the employer’s entitlement to a credit for wages paid to a school teacher pursuant to a collective bargaining agreement. The Board granted credits for wages received by the injured worker through the school district’s collective bargaining agreement, allowing offsets against the claimant’s future entitlement to wage loss benefits.

Michele Punturi (Philadelphia) successfully defended the claimant’s reinstatement petition on behalf of a multi-national car manufacturer. The claimant sustained a work injury on October 18, 2004, in the nature of bilateral strain/sprains CMC osteoarthritis and bilateral dequervains, which was accepted through a Notice of Compensation Payable. Thereafter, the claimant received various periods of disability and periods of return to work, for which benefits were suspended pursuant to Bureau documents and a stipulation. The claimant’s benefits remained on a suspension status as of March 31, 2011. On February 5, 2020, the claimant filed a reinstatement petition. Michele adamantly argued that the petition should be dismissed as the statute of repose bars the claimant’s entitlement to any benefits as he had received in excess of 500 weeks of partial disability status—the claimant received 12.4 years and had not filed the reinstatement petition within three years after the date of his most recent payment of benefits. The judge concluded that the petition was barred pursuant to § 413(a) of the Act and emphasized the Supreme Court’s decision in Cozzone v. WCAB (Pa. Municipal East Goshen Township), which further supported that the claimant’s right to benefits had been extinguished and the petition barred.

Judd Woytek (Allentown) received a favorable decision denying and dismissing the claimant’s claim petition and granting the termination petition. The claim was accepted as medical-only for a low back strain. The claimant then 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 the IME physician and filed a termination petition. The judge denied the claim petition and granted Judd’s 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 denying a coal miner’s claim for benefits when the only evidence submitted by his widow was the death certificate that listed severe chronic obstructive pulmonary disease (COPD) as the primary cause of death. The Department of Labor 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

Thought Leadership

U.S. Supreme Court Decides Key Issue Regarding Interstate Freight Broker Liability

Freight brokers are intermediaries.  They connect shippers of goods with trucking companies that transport those goods.  Freight brokers match a load of freight with a trucking company and oversee the logistics of the transportation. For a number of years there has been a division among the Federal Circuits regarding the potential liability of freight brokers when the trucking companies that they retain for interstate loads are involved in accidents.  At the center of this division was the Federal Aviation Administration Authorization Act of 1994 (FAAAA).  Some Federal Circuit Courts have held that state law negligent hiring claims against freight brokers were preempted by the FAAAA .  Other Federal Circuits Courts have held that even if preemption applied, the “safety exception” in the FAAAA saved state law negligent hiring claims from federal preemption.  On May 14, 2026, the U.S. Supreme Court addressed the conflict in Montgomery v. Caribe Transport II, LLC, et al, No24-1238. In that case freight broker C.H. Robinson selected Caribe Transport to haul an interstate load. The commercial truck driver employed by Caribe Transport allegedly caused an accident and the plaintiff, Montgomery, was seriously injured. Montgomery brought an action against the driver, Caribe Transport and C.H. Robinson. The allegation against C.H. Robinson was that it negligently retained Caribe Transport when it knew, or should have known, that it was an unsafe company. The Seventh Circuit Court of Appeals held that Montgomery’s claims against C.H. Robinson were preempted by the FAAAA. The plaintiff appealed to the U.S. Supreme Court.  The U.S. Supreme Court’s decision focused primarily on the safety exception in the FAAAA.  That provision provides that the FAAAA preemption “…shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” C.H. Robinson argued, as freight brokers historically have, that their function was not “with respect to motor vehicles” because they do not own trucks or employ drivers. They are merely intermediaries, connecting entities who need freight moved with entities who can do that job. Therefore, C.H. Robinson argued that preemption applied, not the safety exception. The U.S. Supreme Court did not accept that argument. The Court focused on the meaning of the phrase “with respect to” in the safety exception. The Court held that it means “referring to”, “concerning” or “regarding”. Therefore, writing for a unanimous Court, Justice Barrett concluded that “[r]equiring C.H. Robinson to exercise ordinary care in selecting a carrier therefore “concerns” motor vehicles—most obviously, the trucks that will transport the goods. So, Montgomery’s negligent-hiring claim falls within the FAAAA’s safety exception, which saves it from preemption.” Justice Kavanaugh, in his concurring opinion, noted the effect this ruling may have on freight brokers and their insurers throughout the country: Importantly, the Court's decision today should not be read to mean that brokers will routinely be subject to state tort liability in the wake of truck accidents. As even plaintiff's counsel stressed, brokers should be able to successfully defend against state tort suits if the brokers have acted reasonably and arranged transportation with reputable trucking companies. Tr. of Oral Arg. 27-29. In plaintiff's counsel's words, the brokers "just have to hire carriers that actually have a reasonable policy," and "the broker is not going to have a problem if it's asking the hard questions of the carrier." Id., at 42, 45. In addition, the proximate-cause requirement in typical state tort law should help protect brokers from excessive liability. Id., at 25. That said, the brokers rightly caution against naivete. In the real world, as the brokers forcefully respond, state tort law can be unpredictable, and the costs to brokers of litigation and insurance may be significant even when brokers prevail in lawsuits. Moreover, the costs of litigation and insurance, as well as the costs of brokers' conducting more substantial inquiries into trucking companies, will cascade through the economy and be paid in part by American consumers in the form of higher prices. The concerns expressed by the brokers are legitimate and weighty. The key point here is that freight brokers can no longer claim they are protected from negligent retention claims by the FAAAA (in cases involving interstate transportation). The challenge will be to determine what is considered ”reasonable efforts” used by brokers when retaining transportation companies. 

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

News

Marshall Dennehey Again Earns Recognition in Distinguished Chambers USA

Thought Leadership

PA Middle District Dismisses Claims Against School District and its Superintendent, Principal, Special Education Director, and Classroom Teacher

A five-year-old special education student was enrolled in the Wyoming Valley West School District and attended the State Street Elementary School during the 2024-2025 school year. The student refused to clean up classroom toys at dismissal. When his teacher allegedly grabbed him by the wrist to walk him back to his seat, the student dropped to the floor and began crying. The teacher then allegedly grabbed the student by the ankle and dragged him across the floor. Following an investigation, criminal charges were not advanced by the county DA, and the school permitted the teacher to return to the classroom. The student’s parents sued, lodging thirteen legal counts under both state and federal law, which sought monetary damages from the teacher, the school district, the superintendent, the principal, and the director of special education. The plaintiff’s 42 USC 1983 claims were dismissed as to the school district for failure to allege a policy or custom violation, and the failure to alleged deliberate indifference in the failure-to-train context. As to the superintendent, building principal, and special education director, the Section 1983 claims were also dismissed for failure to allege personal involvement on the part of the individuals. Regarding an equal protection claim asserted against all defendants, the motion to dismiss was also granted for a failure to advance a plausible equal protection claim, holding that “plaintiffs' single-act allegations do not include a factual basis to even infer that the act was motivated by discriminatory animus rather than some other non-discriminatory impulse.” The court further dismissed the plaintiff’s negligence-based claims including negligence against the teacher and district administrators, NIED, and vicarious liability under the Political Subdivision Tort Claims Act (PSTCA). The federal claims under the IDEA, Section 504, and the ADA were also dismissed in various respects. The IDEA claim was dismissed against all defendants with prejudice for failure to exhaust administrative remedies. The Section 504 claims against the individual defendants were also dismissed with prejudice, as districts, not individuals, are the recipients of federal funds under Section 504. However, the Section 504 and ADA claims were dismissed without prejudice as to defendant Wyoming Valley West, and the plaintiff was permitted leave to amend.

Thought Leadership

Marijuana Legalization and Workplace Risk: What New Jersey Employers Need to Know

While the legalization of recreational marijuana usage poses a risk of increased work-related accidents for younger workers, employers can work to curb this increase by investing in education, effective drug policies, and employee assistance programs.

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

News

Christina Gonzales To Speak at the Women of Color Roundtable at DRI’s Diversity and Inclusion Seminar

Event

29th Annual FDLA Florida Liability Claims Conference

Jim and Erica will team up to present, "Supporting the Next Generation: Connecting with Associates." This panel-style presentation will explore communication best practices from the perspective of a senior shareholder and newer associate. The discussion will focus on the communication styles of different generations and effective strategies to avoid communication breakdowns. Topics to be discussed include the hiring process, perceptions of defense work among newer lawyers, work-life balance issues after hiring, and mentoring.

graphic with Maria Granaudo photo text announces she has joined the firm as a shareholder in the Health Care Dept.

News

Maria R. Granaudo Joins Marshall Dennehey’s Wilmington Office As a Shareholder in the Health Care Department

Result

Summary Judgment Secured, Preserving $750,000 in Coverage for Insured in Major Trucking Liability Dispute

Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.