.

What's Hot in Workers' Comp

What's Hot in Workers' Comp - News and Results*

February 1, 2021

NEWS

Angela DeMary (Mount Laurel, NJ) was a featured speaker in the Camden County Bar Association CLE program, “Practicing Workers’ Compensation Law Remotely and COVID-19 Type Cases.” The webinar was held on January 27 and focused on the process of managing a workers’ compensation claim; what is an essential worker and who is considered a first responder; and recent legal and legislative updates based on the Governor’s Orders. The usage of DocuSign and remote forms as well as Zoom settlements and trials were also discussed.

 

 

RESULTS*

Judd Woytek (Allentown, PA) was successful in receiving a decision denying a penalty petition. The claim had settled by Compromise & Release. The claimant had undergone three surgeries to her wrist while litigating her review petition to expand the accepted injury. As part of the C&R, the claimant agreed that the carrier would not be responsible for any medical bills related to her second and third wrist surgeries. The carrier agreed to pay her $5,000 to cover her out-of-pocket expenses related to those surgeries. Her private health insurance carrier later retracted payments it had made for her follow-up care and physical therapy post-surgery. The claimant then filed a penalty petition against the workers’ compensation carrier when it refused to pay the bills on which the private insurance carrier had retracted payment. The judge denied and dismissed the penalty petition, finding that the claimant had negotiated away her right to seek payment from the workers’ compensation carrier with regard to any bills related to the subsequent wrist surgeries as she had accepted $5,000 in exchange and was bound by the C&R. The workers’ compensation carrier had no obligation to pay the bills.

Judd also received a decision denying a reinstatement petition in a claim where the claimant, who was working under restrictions, sought reinstatement of temporary total disability for a closed period of time when he was laid off due to Governor Wolf’s Order issued in March 2020 directing that all non-life-sustaining businesses close. The judge agreed with our position that the claimant’s loss in earnings was unrelated to the work injury and was due solely to the Governor’s Order. The reinstatement petition was denied and dismissed.

Judd was again successful in receiving a decision denying a widow’s claim for Federal Black Lung benefits. The deceased miner worked in underground coal mining for 11 years. His lifetime claim for benefits was denied after numerous claim filings and appeals. The widow then sought survivor’s benefits based upon the opinion of her medical expert, who opined that the miner’s death was hastened by coal workers’ pneumoconiosis. The judge rejected the widow’s expert in favor of our expert, who testified that the miner’s death was not caused or hastened by pneumoconiosis. The widow requested reconsideration and attempted to submit additional evidence (an additional medical report and 12 medical journal articles) that she had not submitted during the litigation of the widow’s claim. The judge again rejected the claim on reconsideration and found that, even if the employer’s medical expert testimony were rejected, the testimony of the widow’s medical expert was insufficient to sustain her burden of proving by a preponderance of the evidence that the miner’s death was caused by or hastened by pneumoconiosis. The judge also agreed with our argument that the additional evidence submitted in conjunction with the request for reconsideration was impermissible and should be stricken from the record.

Tony Natale (Philadelphia, PA) was successful in dismissing the employer and insurer from a fatal claim as a result of COVID-19 infection. The claimant-widower filed the claim on behalf of his deceased wife, alleging she contracted COVID-19 while working in the capacity of a caretaker for a sick client. Tony argued that the correct employer for workers’ compensation purposes was the claimant’s client, not the named employer. The Workers’ Compensation Judge agreed and dismissed the named employer and insurer as party defendants.

Tony also successfully defended a Philadelphia-based university in litigation surrounding both a claim and reinstatement petitions. The claimant sustained a non-disabling injury in the form of right thumb CMC joint arthritis from her repetitive job duties. After several years of employment, she alleged that her work injury forced her out of the labor market, and she requested disability benefits. The Workers’ Compensation Judge accepted as credible, by preponderance of the medical evidence, that the claimant did not suffer a work-related disability of any kind. A big part of the rationale for this determination was Tony’s cross examination of the claimant’s medical expert, which exposed that the claimant’s disability may have been due to a variety of non-work-related conditions to the left hand and upper extremity.

Tony also successfully defended a Delaware County machine shop before the Workers’ Compensation Appeal Board with reference to the claimant’s appeal from a Workers’ Compensation Judge’s decision denying work-related disability arising from an alleged head injury and a full recovery conclusion of law. Tony was able to have the appeal quashed based on its untimely filing. The Board also adjudged the appeal on the merits (which is unusual) and further found that the appeal lacked merit on all grounds.

Ashley Eldridge (Philadelphia, PA) was successful in defending a claim petition for an alleged spine injury on behalf of a construction company. The claimant was employed as a construction worker for the employer, and a week after being hired, he was allegedly injured while using a jackhammer. He filed a claim petition for multilevel disc injuries in the lumbar spine. Ashley presented the medical testimony of an orthopedic expert who explained how the injury was soft tissue in nature and had resolved as of an independent medical examination. While there was significant, multilevel disc bulges and herniations, which the opposing expert attempted to ascribe as work-related, the judge agreed these findings to be degenerative rather than acute. This conclusion was further supported by an ongoing factual investigation, which uncovered 17 prior low back injuries, the majority of which were denied by the claimant. Ultimately, the judge accepted the defense’s evidence over that of the claimant and granted the full relief requested by the employer.

Michele Punturi (Philadelphia) successfully prosecuted a termination petition and defended the claimant’s petition to review to expand the nature of the accepted injury on behalf of a well-known hospital. The injury was accepted as a right distal bicep strain, which included a partial tear resulting in surgery. The claimant asserted the injury should be expanded to also include right carpal tunnel, right elbow sprain and trigger fingers. A detailed cross-examination of the claimant established the complaints referable to right carpal and trigger fingers began six months after the injury, which was corroborated by the claimant’s treating physician’s records. The IME expert, a board-certified orthopedic surgeon with specialized training in hand surgery, had the opportunity to perform a comprehensive physical examination and review the diagnostic studies, post- and pre-injury medical records and the claimant’s family physician’s records. These records revealed non-work-related carpal tunnel risk factor conditions, including obesity, post-menopausal, non-insulin dependent diabetes and testing for hypothyroidism. It was further argued that the claimant’s medical expert did not have expertise in the surgery involved in the case and failed to review the claimant’s testimony and diagnostic films. Ultimately, the judge found the defense medical expert to be competent, credible and persuasive. This case highlights the importance of a defense expert having the opportunity to review all medical records, diagnostic films, claimant’s testimony and claimant’s expert’s testimony to develop a timeline for claimant’s complaints consistent with the medical evidence.

*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

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. 

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.

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

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

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

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

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Result

Summary Judgment Obtained in Insurance Coverage 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.