Workers' Compensation Defense

We received a favorable decision dismissing a Claim Petition involving a claimant who alleged injuries from working at home on the couch. Mike submitted the claimant’s testimony from third-party litigation demonstrating conflicts with her testimony in the workers’ compensation case to impact her credibility. He also emphasized the claimant’s pre-existing condition, even though she told her medical expert that she was asymptomatic, as the claimant had been receiving chiropractic care for 38 years. The judge found that the history relied upon by the claimant’s medical expert was based upon what the claimant told him, which he found not credible. The judge ultimately found that the claimant did not meet her burden of proving that she suffered a work-related injury.

We successfully defended a manufacturer serving OEMs in the aerospace, defense, semiconductor and high-tech industries. The case involved a claim petition with complex injury allegations and a potentially catastrophic initial judgement on the pleadings since the employer failed to timely answer the claim petition. When we became involved, we were able to limit the judgement on the pleadings to the date that a timely answer could have been filed. Ongoing disability in the case turned on the credibility of the claimant’s medical evidence. The claimant presented an expert witness who opined that the claimant’s virtual lifetime of serious low back and neck abnormalities were “aggravated” by his having sat down at work after feeling dizzy. Tony presented rebuttal expert evidence from a well-respected orthopedic surgeon demonstrating no architectural change in the claimant’s lumbar spine or cervical spine due to the alleged injury event and no ongoing or acute problems. The court accepted the defense evidence as credible, and the claimant was found to be without ongoing disability and fully recovered from any condition subject to the former judgement on the pleadings.

We successfully represented an insurance company before the Commonwealth Court of Pennsylvania. The court agreed with our argument that the claimant needed to provide notice of his work-related injury to the defendant insurance company within 120 days of the occurrence of the injury due to his combined status as sole proprietor/owner and also the employee in this matter. The judges distinguished the facts of the case due to the fact that the claimant was a sole proprietor, owner and the only employee of his own business. The court agreed that allowing the claimant to pursue a claim, by claiming that he provided notice to himself immediately when the accident occurred, but did not bother to report the injury to the insurance company for over a year thereafter, would result in an absurdity and put the insurance company at a disadvantage in the investigation of the claim. The court also noted that the definition of “employer” in certain portions of the Act includes not only the actual employer as a business itself, but also the employer’s duly authorized agent or its insurer, if such insurer has assumed the employer’s liability. Since the claimant failed to provide notice to the insurance company within 120 days of his injury, the court held that the Claim Petition was barred. The Claim Petition was dismissed, and the claimant was not entitled to any benefits at all.

We obtained a workers’ compensation defense verdict on behalf of an employer/carrier in a previously compensable claim by proving the claimant knowingly and intentionally made false, fraudulent, and misleading statements under oath during two depositions, and to two authorized treating providers, which were contradicted by surveillance and other evidence, ultimately barring the claimant from further benefits. The case involved multiple expert and fact witness testimony and presentation of multiple days of surveillance to the court.

We obtained a defense verdict on behalf of an employer/carrier in a previously compensable claim. We were able to prove the claimant knowingly and intentionally made false, fraudulent, and misleading statements under oath during two depositions, and to two authorized treating providers, which were contradicted by surveillance and other evidence, ultimately barring the claimant from further benefits. The fraud/misrepresentation defense is an affirmative defense, and the burden was on the employer/carrier to prove same. The case involved multiple expert and fact witnesses and presentation of multiple days of surveillance to the court. 

The claimant injured her right wrist in 2016 while working as a teacher for the State. Her injury eventually developed into complex regional pain syndrome (CRPS) involving multiple extremities. From 2017 to 2021, the State paid for 23 ketamine infusion treatments to treat the claimant’s CRPS. The treatment was rendered by an out-of-state provider. In 2019, the State contracted with a new bill-review company that paid substantially lower amounts than was previously paid for the same treatment. The claimant filed a petition that alleged these lower payments were insufficient and inconsistent with Delaware law. The Industrial Accident Board determined that the payments made by the State were correct under the Delaware Workers’ Compensation Act’s health care payment system and Fee Schedule. The Superior Court affirmed the decision. The claimant appealed to the Delaware Supreme Court, arguing that the Board failed to correctly apply the Act and Fee Schedule regulations, as interpreted in the Superior Court opinion Delaware Veterans Home v. Dixon. Specifically, the claimant alleged that the Board failed to assess the adequacy of medical billing codes by referring to resources from the American Medical Association or the National Correct Coding Institute. The Supreme Court rejected this argument. The claimant bore the burden of proving whether the billing codes used by the provider for the ketamine infusion treatments were insufficient or inaccurate. The resources cited by the claimant were, indeed, referenced in the Fee Schedule administrative regulations, but no evidence was presented by the claimant at the Board hearing. It was neither the employer’s nor the Board’s responsibility to present that evidence. Therefore, there was no legal error. The court further advised that the Act’s Oversight Panel is the proper forum to determine whether specific billing codes provide reasonable compensation for particular treatment, which was a secondary argument advanced by the claimant. The decisions were affirmed.

We successfully prosecuted a termination petition involving a low back injury for a delivery truck service company. Our expert opined that the MRI failed to reveal any acute or post traumatic findings, that the claimant only sustained a soft tissue lumbar sprain/contusion and the exam revealed no objective findings. The workers’ compensation judge found our expert’s opinions were well-supported and terminated all liability.

We successfully argued that a settlement agreement, based upon a binding and enforceable agreement reached via email between the parties, is enforced. The claimant had given her attorney authority to settle, but subsequently changed her mind. Based upon case law, there was unequivocal authority to settle and it was too late for the claimant to negate the agreement previously reached. The judge of compensation claims agreed and upheld the settlement. In another matter, we filed a motion to enforce a settlement agreement reached by the parties at mediation, which the judge of compensation claims granted. Despite attending mediation, reaching an agreement and having a mediation report drafted, the claimant did not sign the agreement. He then terminated the services of his attorney and retained new counsel. At the hearing held before the judge, Linda called the claimant’s former attorney as a witness and also conducted a direct examination of the claimant. Ultimately, the judge found that the claimant had agreed to settle and changed his mind later. Therefore, the settlement agreement was enforced.

We successfully defended a claim where a large cable provider (owner) hired a contractor to complete work at an out-of-state location, and various parts of the job were subcontracted to several different companies, one of which did not have New York workers’ compensation insurance coverage. The contested issues were whether the Board has subject matter jurisdiction over this claim, what company employed the claimant, and whether the claimant was a covered employee. We argued that the claimant was not an employee/special employee of the cable provider and emphasized that an owner who contracts with an independent contractor for construction on his own property is not a contractor within the meaning of Section 56 of the Workmen's Compensation Law in New York. A special employer assumes and exercises “exclusive control” over a general employee; a determination on the issue of special employment may be made as a matter of law. However, if there are issues of fact concerning a surrender of control by a general employer and an assumption of control by a special employer, a determination on the issue of special employment will hinge upon a consideration of not only control but also factors such as the special employer's right to hire or discharge such an employee, the payment of wages and ownership of tools utilized on the job, all the while recognizing that ordinarily no one factor is determinative. There was no evidence on the record to support that an employee-employer relationship existed between our client and the claimant. With regard to subject matter jurisdiction, we argued that New York did not have sufficient contacts with the circumstances surrounding this claim. The only contact between this claim and the state of New York was the claimant’s home address. The court agreed with our arguments and dismissed our client from the claim.

We successfully defended a Claim Petition on behalf of a national trucking company where the claimant alleged a disabling aggravation of a pre-existing cervical condition from a fall at work. Our thorough review of the medical records and the presentation of the evidence convinced the judge that the claimant did not meet his burden of proof on causation. While providing the requisite direct testimony, on cross examination, the claimant’s expert admitted when he first saw the claimant one month after the work incident, the claimant had a head droop from cervical fusion surgery five months before the date of injury, and said that surgery “unrelated” to the work injury would be needed to correct it. This was inconsistent with the expert’s direct examination testimony, which was that the work incident had caused the head droop. Further, with the employer’s expert, who reviewed the testimony of the claimant’s expert and reviewed all medical records pre- and post-incident, we were able to establish that the opinion of the claimant’s expert was flawed, pointing out that the claimant’s expert failed to perform a side-by-side comparison of pre-injury diagnostic studies to post-injury studies, which would indicate whether the head droop was a slow progression from the prior surgery or due to a traumatic incident. The Judge found that the claimant’s expert failed to adequately explain what he saw in the studies completed after the work incident that supported his theory on causation.

We successfully defended a claim on behalf of our client where the answer was late without a reasonable excuse. However, we persuaded the workers’ compensation judge that the claim petition was not well-pled as to the main allegation. We further convinced the judge that the claimant did not meet his burden of proof on causation.

In our successful appeal to the Commonwealth Court, the workers’ compensation judge had awarded a closed period of benefits and then terminated all benefits, despite the employer’s late answer. The judge found that the description of injury was not well-pled and, therefore, not deemed admitted. The Appeal Board reversed the judge on the full termination of benefits, saying that, since our IME physician did not acknowledge a work-related psychiatric injury, his testimony was in conflict with the admitted injury due to the late answer. They reversed the judge and ordered reinstatement of temporary total disability benefits. The Commonwealth Court found in our favor and reversed. The court held that the judge was correct that the injury was not well-pled and that we were not deemed to have admitted a psychiatric injury. Therefore, they reinstated the judge’s decision which terminated benefits.

We successfully defeated the claimant’s appeal on a hotly-debated issue surrounding course and scope of employment in a case involving a motor vehicle accident during a paid lunch hour, which resulted in extreme medical treatment costs. We were able to convince the underlying court that the claimant was not in the course and scope of employment at the time of injury due to her deviation to run personal errands. The claimant appealed alleging the fact that, as her lunch hour is paid, she was certainly in the course and scope of employment and the underlying court erred. The Appeal Board affirmed the underlying court’s judgment, and claimant’s appeal was dismissed.

We won a trial for a cable company where the claimant was injured while working at one of the company’s sites. The claimant was hired by one of the subcontractors of our client to complete work at their facilities. We successfully argued that the claimant is not an employee or special employee of our client. The court agreed and dismissed our client from this claim. 

We prevailed on termination, suspension and review petitions, where the workers’ compensation judge found that the claimant was fully recovered as of the date of our medical expert’s examination. The judge found our witnesses more credible than the claimant’s and denied the claimant’s review petition to expand the accepted injury. We successfully recovered $33,508 from the Supersedeas Fund for our client.

We successfully obtained orders for dismissal with prejudice on two Medical Provider Applications. Two separate New Jersey medical providers alleged they were entitled to additional money for medical treatment provided in New Jersey to a New Jersey resident. Each provider claimed that, because the injured worker who received the treatment was a current resident of New Jersey and treatment was rendered in New Jersey, there was sufficient contact for the court to exercise jurisdiction for a Medical Provider Application and bills should be paid at a usual and customary rate, as opposed to New York’s fee schedule. The worker’s compensation claim that resulted in the Medical Provider Applications was a New York claim, with no New Jersey contacts for the parties at the time of the injury. The injured worker only later moved to New Jersey and received medical treatment with New Jersey providers, who were then paid per the New York fee schedule. The providers’ billed amounts were $221,591.55, $6,157.50, and $6.157.50 for three dates of service. The employer made payments in the amount of $55,488, $1,401.83, and $740.42, respectively, per the New York fee schedule. Adam successfully argued to the court that, because it would not have been able to exercise jurisdiction over the underlying worker’s compensation claim, it would not be able to exercise jurisdiction over the two resulting Medical Provider Applications. Therefore, the providers could not seek additional money in New Jersey based on its usual and customary standard, as opposed to New York’s fee schedule. This saved the employer up to $176,276.30 in potential medical payments. Both Medical Provider Applications were dismissed with prejudice.

We obtained a denial for workers’ compensation in a claim that involved alleged injuries to the entire left upper extremity and neck from a work accident. Through the use of an expert witness, we were able to prove that the claimant had sought treatment for his injuries well prior to his employment with our client. As a result, all claims for compensation were denied.

The claimant alleged issues with his speech, vision and balance. His treating physician diagnosed a concussion with post-concussion syndrome and cervicalgia resulting in gait, visual and speech dysfunction, headaches, nausea, vomiting, dizziness, sensitivity to light and sound, and difficulty walking. The judge limited the injury to a scalp contusion and traumatic Bell’s Palsy, awarded less than 11 weeks’ of benefits, and terminated benefits as of our IME.

The Pennsylvania Commonwealth Court ruled in favor of our employer client, holding that it was error to “erase” the 500-week employer credit provided by Act 111 for partial disability benefits paid beginning in 2008, and that the claimant’s 2019 reinstatement to total disability status did not retroactively convert those prior partial disability benefits into total disability benefits.  The claimant’s work injury, a contusion to the low back, occurred in 2006. Based on the results of a 2008 IRE that assigned a zero percent impairment rating, the claimant’s benefits were modified from total to partial. The employer filed a Notice of Change of Workers’ Compensation Disability Status, which was not challenged by the claimant. Following the Supreme Court’s decision in Protz, however, the claimant filed a modification petition in 2018, seeking reinstatement of his total disability benefits. The petition was granted, and it was noted at the time that the claimant had not exhausted his 500 weeks of partial disability.  The employer filed a petition for modification, based on the results of a December 2019 IRE performed on the claimant, that was granted by the Workers’ Compensation Judge. The IRE was performed pursuant to Act 111. The parties cross-appealed, and the claimant took the position that Act 111 cannot be applied retroactively to injuries sustained prior to Act 111’s October 24, 2018, effective date and that Act 111 constituted an unlawful delegation of legislative authority. The employer cross-appealed the judge’s failure to award a 500-week credit and to suspend the claimant’s benefits.  Citing prior cases that consistently held that Act 111 applies retroactively with respect to a calculation of a claimant’s weeks of partial disability paid prior to the effective date of the Act, the claimant’s appeal was dismissed.  The employer prevailed on its cross-appeal and the Appeal Board’s order was reversed to the extent that it denied a credit for the previously paid weeks of partial disability.   

We presented medical evidence, including a record review of all diagnostic study films and medical records from a Board-certified physiatrist, to establish that the claimant’s physiological complaints were unrelated to a work injury. The judge accepted our evidence as fully competent, persuasive and credible, and, as a result, terminated the claimant's benefits.

We successfully prosecuted a termination petition, securing a full recovery opinion from the court with reference to a Medicare eligible claimant who worked for a local Philadelphia financial institution. The claimant suffered a knee injury during the course and scope of employment. She ultimately required knee surgery for a torn meniscus. We presented evidence from the claimant’s treating surgeon, coupled with an independent expert, to produce an evidence record that demonstrated by preponderance of the evidence that the knee injury had fully resolved.

We represented a national internet retailer in the successful denial of a proposed lumbar fusion surgery and indemnity benefits. The claimant was awarded the injury and conservative medical treatment, however, the lumbar spine fusion surgery was denied, as were total and partial disability benefits. The client avoided a complex multi-level lumbar spine fusion surgery (L3-S1), total and partial disability benefits, and the post-surgical care. Because the surgery will not occur, the client is also relieved of a large post-operative permanent impairment award and surgical disfigurement. Key to the Board’s determination was our defense medical expert casting doubt on the surgery; our cross-examination of the claimant and his spine surgeon; and our closing argument, which was quoted by the Industrial Accident Board in their decision on the merits. 

We defended a Claim Petition, successfully proving that a claimant’s injury was not work-related. After a thorough investigation and review of the medical records, we were able to present witnesses and evidence that confirmed that the alleged injury had gone unreported and was inconsistent with the mechanism of injury. The Workers’ Compensation Judge found our witnesses credible that the claimant did not report his knee condition as work-related. Their testimony was supported by the medical records, which indicated that for six months after the alleged injury, the claimant had nine office visits with five doctors but never indicated that he had suffered a work-related injury. In addition, the claimant never told his own expert that he suffered a work-related injury until several months later. Finally, the judge believed our expert that the knee condition was inconsistent with the mechanism of injury.

We successfully defended a late answer against a claimant’s Yellow Freight motion by convincing the judge that the claimant’s claim petition was not well-pled and did not meet the claimant’s burden of proof with respect to disability. The claim petition alleged that the claimant did not return to work for the employer and sought payment of ongoing disability. In defense of the motion, we submitted evidence showing that the claimant returned to work for the employer within days of the alleged work injury, arguing that the claimant was not disabled as alleged. Accordingly, the judge was convinced that, although the employer’s answer was late, the claim petition was not well-pled and the Yellow Freight motion was denied.

We successfully prosecuted a suspension petition in a case of first impression in Pennsylvania. The claimant sustained a compensable mental injury while employed with the employer. Thereafter, he refused to attend an Impairment Evaluation after receiving 104 weeks of indemnity benefits due to his injury. The court initially issued an order compelling the claimant’s attendance. Nevertheless, the claimant maintained his refusal to attend the evaluation, citing the fact that he was COVID-19 positive and required to quarantine. We demanded that verification of the virus be made part of the evidence record. In response, the claimant’s attorney submitted into the evidence record a COVID-19 testing result, which was an at-home test. We reviewed the testing result and found that it was a fake—there was a pornographic image contained in the window of the positive testing result, and through internet research we determined that this fake test was being used all over the United States. The claimant’s attorney was unaware that the test was fake and maintained it as part of the evidence record. At oral argument, Tony referred the court to the manufactured evidence and not only argued for a suspension of benefits, but also alleged that the claimant violated the fraud provisions of the Pennsylvania Workers’ Compensation Act. Claimant’s attorney immediately removed himself as counsel of record. The court determined, based on the evidence, that benefits were suspended and actually concluded as a matter of law that the claimant committed fraud – a decision of first impression in Pennsylvania.   

The decedent died of a heart attack after a three-day, over-the-road run for the trucking company. The decedent’s dependents argued that the heart attack was caused by the rigors of the job. Although the decedent died as he was about to execute paperwork denoting his employment status as an independent contractor—he never signed the document. The case, therefore, proceeded to litigation in the Workers’ Compensation forum. Expert evidence was presented on the issue of whether the decedent’s job duties had any contribution to the death. The court concluded, based on the evidence presented, that the work duties had no relationship whatsoever to the demise of the decedent. The fatal claim was dismissed in its entirety.

We won a favorable decision from an Administrative Law Judge on a Federal Black Lung claim. The judge credited the claimant with 11 years of qualifying coal mining employment, but found that the claimant had failed to prove a totally disabling respiratory impairment and, therefore, denied the claim. We presented evidence from our medical expert that the claimant did not contract coal workers’ pneumoconiosis as the result of his work in the coal mines, and that he was not disabled by a respiratory impairment. The judge addressed the issue of total respiratory disability first and found the claimant failed to meet the burden of proof with a pulmonary function study, an arterial blood gas study, and medical opinion evidence. The judge credited the opinions of our medical expert over those of both of the claimant’s expert and the independent expert retained by the Department of Labor. The judge found no respiratory disability and, therefore, denied the claim.

The parties were litigating a motion for medical treatment in which a physician was recommending an additional spinal surgery. The physician moved forward without authorization and performed spinal surgery on the petitioner. In order to complete the surgery, the physician brought in several ancillary services, including a vendor to perform diagnostic monitoring during the surgery. Following the surgery, the medical provider submitted its bills to the carrier, which were rejected based upon the lack of authorization. After a medical provider claim petition was filed, the respondent filed a motion to dismiss the matter for failure to obtain the requisite statutory authorization. The medical provider argued that it was only providing ancillary services and, therefore, did not require the authorization of the carrier under the New Jersey Workers’ Compensation Statute. The medical provider also argued that they were the “victim” since they were advised by the physician that the procedure was authorized. The judge rejected both arguments, holding that all medical providers including providers that provide ancillary services for surgical procedures, are required to obtain the same authorization for their treatment, or risk not receiving financial reimbursement.

The claimant was hit by a forklift while operating a forklift, and alleged the accident caused a back injury. Through employer witness testimony and medical testimony, we showed that the claimant did not sustain a back injury, and that her medical issues were pre-existing and unrelated to the accident. The judge found that the evidentiary evidence presented by the employer established that, even though the claimant was involved in a forklift incident, the claimant did not sustain a work injury, and her ongoing medical issues are unrelated to the forklift accident. 

The petition was filed by the claimant before an administrative judge. The claimant alleged he was entitled to reinstatement of indemnity benefits after he voluntarily stopped working due to hand pain. We argued the light-duty position available and offered to the claimant was a one-handed position, and presented employer fact witness testimony and video of the light-duty job in rebuttal.