.

What's Hot in Workers' Comp

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

What’s Hot in Workers’ Comp, Vol. 29, No. 9, September 2025

September 1, 2025

RESULTS*

Ryan Hauck (Pittsburgh, PA) successfully defended a Claim Petition that alleged multiple orthopedic fractures and dislocations to the upper extremity, hip and bilateral lower extremitie along with payment of past and future wage loss and medical benefits. The workers’ compensation judge fully adopted our position that the claimant’s injuries did not arise in the course and scope of employment. Through strategic reliance on case law, focused cross-examination and close collaboration with the employer to define property boundaries within a commercial complex, we established that the claimant was injured off the premises during an unpaid lunch break, was not furthering the employer’s interests, and was not engaged in any activity authorized, directed or otherwise related to her employment at the time of her injury. This resulted in a complete denial of the claim and significant savings in litigation spend because the issue was bifurcated before having to participate in costly medical discovery and evidence.

Michael Sebastian (Scranton, PA) was successful in having workers’ compensation benefits suspended on behalf of a multinational food corporation. We filed a Suspension Petition based upon the claimant’s employment prior to being taken out of work. The claimant filed a Reinstatement Petition for a right CTS claim and a Claim Petition for the left CTS claim. The claimant also also filed UR Petitions related to her treatment with Dr. Mercado and Dr. Patel. Prior to the decision, we accepted the left-sided CTS as work related. The issue to be decided by the workers’ compensation judge was whether the claimant was entitled to a reinstatement of benefits because her job required her to work in a cold environment. In the decision, the judge noted that, when the claimant was working, she did not have to touch the cold meat which was on a conveyor belt andshe also wore gloves and cold weather clothing while performing the position. The judge noted that Dr. Martinez did not know the temperature of the claimant’s hands with gloves on nor did he know the temperature of the plant. The judge noted that Dr. Martinez testified that if the claimant’s hand temperature with gloves on was between 70–80 degrees, that should be okay. The employer’s witness testified to an experiment measuring hand temperature with gloves on; her hand temperature with the glove on was initially 87 degrees and, after 3–3.5 hours on the floor, it was 75 degrees. Dr. Talsania testified that cold temperature does not affect CTS. The judge found the claimant’s testimony and Dr. Martinez’s testimony not credible and found the employer’s witness and Dr. Talsania credible in all respects. She also found the UR reports credible concerning the claimant’s treatment. The judge suspended the claimant’s benefits effective May 23, 2024, finding she was capable of performing the quality monitor position in the cold environment. The judge also found that Dr. Mercado’s and Dr. Patel’s treatment after April 11, 2024, were not reasonable or necessary.

Michael Sebastian (Scranton, PA) was successful in having a Claim Petition denied and dismissed. The workers’ compensation judge noted that during her cross examination, the claimant was unsure exactly what day she was injured and that she denied telling co-workers she was injured falling down steps at home. He also noted the claimant denied the histories she gave to the medical providers regarding the location of her back pain, i.e., left vs. right. The judge also noted the claimant reported the date of injury as April 3, 2024, to medical providers and denied having a conversation with the insured. Regarding the employer’s witnesses, he noted that Ms. Woronko testified that the claimant was walking gingerly at work on April 1, 2024, and that she indicated she did something to her back and had to go home, but the claimant did not indicate it was work-related. Mrs. Ellsworth did not recall the claimant getting injured, contrary to the claimant’s testimony. This witness indicated that the claimant told her she was injured at home on Friday when she fell down the stairs. She noted that on April 5, 2024, the claimant was barely able to walk and was breaking down in tears. She also indicated that, had the claimant told her the injury was work-related, she would have reported it. Finally, Ms. Gerrity testified that the claimant had the handbook and went out of work because of her back on April 5, 2024. The claimant called her on a Friday or Saturday, indicating that she had to go to the doctor, but she did not indicate it was work-related. She learned the claimant was claiming it was work-related from another employee, so she told the claimant to fill out an accident report. The judge also accurately summarized the testimony of the claimant’s expert, Dr. Henderson, and our expert, Dr. Banas. On cross examination, Dr. Henderson was unable to explain how the claimant’s symptoms went from the right side to the left side and that the claimant did not complain of S1 joint problems, i.e., left-sided symptoms, until six weeks after the injury. The judge found the claimant not credible due to her inconsistent testimony and did not accept her testimony that she suffered a work-related injury. He found the employer’s witnesses credible and that they sufficiently rebutted the claimant’s testimony. He accepted Mrs. Ellsworth’s testimony that the claimant fell down the stairs at home prior to the alleged incident. The judge also accepted the testimony of Dr. Banas over Dr. Henderson, finding that the claimant only had a lumbar strain and had fully recovered. The judge determined that the claimant failed to meet her burden of proof that she sustained a work-related injury and was not entitled to disability benefits.

Benjamin Durstein (Wilmington, DE) successfully had a Petition to Determine Compensation Due dismissed. Following an evidentiary hearing, the Industrial Accident Board determined that the claimant did not meet the burden to prove there was any accident that constituted an “untoward event” that occurred on February 1, 2022, which is a required element of the Nally successive carrier/subsequent accident analysis. Nally requires that an “untoward event” beyond the normal duties of employment is required in order to shift liability from the first employer/carrier to the subsequent employer/carrier. 

Benjamin Durstein (Wilmington, DE) was successful in having a Petition to Determine Compensation Due dismissed. The Industrial Accident Board denied a claimant’s petition, in which she alleged she injured her right ankle, both upper extremities and low back during the course and scope of her employment on April 12, 2022.  The Hearing Officer did not find the claimant’s account of the accident to be credible given the inconsistencies with her actions before and after the work accident and the lack of supporting evidence.

*Prior Results Do Not Guarantee a Similar Outcome 

 

NEWS

We are proud to highlight the Workers’ Compensation Department’s 13 attorneys who have been recognized in the 2026 editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America in the area of Workers’ Compensation Law – Employers. 

Our 2026 Best Lawyers in America:

Our 2026 Best Lawyers: Ones to Watch:

Less than 6% of all practicing lawyers in the U.S. were selected by their peers for this recognition. 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/. 

 

What’s Hot in Workers’ Comp, Vol. 29, No. 9, September 2025, is prepared by Marshall Dennehey 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 © 2025 Marshall Dennehey, 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

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.

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.

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

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

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.

News

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

News

John J. Hare Featured in Pennsylvania & Delaware Super Lawyers Magazine

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. 

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.