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What's Hot in Workers' Comp

The Appellate Division Affirms Dismissal of Petitioner’s Three Claim Petitions for Failure to Sustain Burden of Proof.

Lindell v. W.H. Indus., Inc., No. A-1815-20 (App. Div. June 1, 2022)

July 1, 2022

by Kiara K. Hartwell

The petitioner began working for the respondent in 1999. In 2001, she was struck by a car and her right hand went through the windshield. She underwent surgery to repair her hand and another later to remove a neuroma. She also underwent pain management treatment, therapy and medication. She was diagnosed with right hand reflex sympathetic dystrophy (RSD)/complex regional pain syndrome (CRPS).

In 2009, the petitioner filed two claim petitions—for June 27, 2007, and September 14, 2007, incidents—in which she allegedly injured her right hand. She was still receiving treatment at the time of the June 27, 2007, incident. She then filed a third claim petition for a right hand injury on August 12, 2009. The petitioner stopped working then and alleged her pre-existing RSD/CPRS was aggravated by these incidents. The respondent filed its answers for the June 27, 2007, and August 12, 2009, incidents, confirming the incidents arose out of and in the course of employment and paying all benefits.

After the 2007 incidents, the petitioner was authorized to continue treatment with Dr. Schlifstein until care was transferred to Dr. E. Freeman in 2013. Dr. Freeman treated the RSD/CPRS diagnosis, but he never made a causation determination as the petitioner had come to him with that condition. He relied on the petitioner’s subjective complaints, noting she had a “very mild case” of RSD/CPRS “if you believe her subjective complaints.”

On September 21, 2015, the petitioner was riding her bicycle when she was hit by a car. Eight days after, she saw Dr. Freeman, claiming she had a flare-up of pain due to weather, but she never told him about the car accident. She did not disclose it to him as she was “fuzzy” due to the loss of a family member. In 2016, she underwent cervical and lumbar surgeries and failed to disclose them to Dr. Freeman, even though she saw him shortly before or after the surgeries. Dr. Freeman found out about the 2015 incident after being advised by the respondent in 2017. The petitioner also saw Dr. Schlifstein after the 2015 incident, but allegedly only for her left side, and he prescribed various medications. Dr. Freeman noted he was unaware the petitioner was getting treatment and prescribed medication by other doctors. Dr. Freeman noted the petitioner filled prescriptions from other providers while under his care after a review of pharmacy records.

Dr. Freeman was called as a witness by the petitioner. He testified that there was no evidence the 2009 work incident caused RSD or that it became worse. He confirmed that after the 2015 incident, the petitioner had pain flare-ups, which could have been related to the surgeries after the 2015 incident. Dr. S. Dane, the petitioner’s expert neurologist, then testified that the RSD/CPRS was aggravated by the 2009 incident, but no subsequent aggravation. He confirmed the petitioner did not tell him about the 2015 incident or surgeries when he initially examined her in 2017. He noted that many of her complaints could have been the result of cervical radiculitis due to the surgery, that the RSD diagnosis was based on her subjective complaints, and he only had one progress note from Dr. Schlifstein prior to the 2009 incident.

The respondent’s expert, Dr. C. Effron, testified, noting no objective findings of RSD and that there was no permanent disability to her right hand. 

The Workers’ Compensation Judge dismissed all three claim petitions for failure to sustain her burden of proof. The judge found the petitioner intentionally did not tell Dr. Freeman about the 2015 incident, that her assertion she only saw Dr. Schlifstein for her left side to be “blatantly absurd,” and “incredible” that Dr. Freeman did not ask her about changes in her medical history. She found Dr. Freeman to be credible and believed Dr. Effron’s testimony that the petitioner failed to disclose the 2015 incident. Overall, the judge found the nondisclosure of the 2015 incident, coupled with her lying about filling multiple doctors’ prescriptions, damaged the petitioner’s credibility. The judge also noted the petitioner stopped working after the 2009 incident, but provided no expert opinion that she was 100% disabled or that she was unable to work.

The petitioner appealed, arguing she met her burden of proof and the judge erred in various aspects. The Appellate Division disagreed, noting the judge’s assessment of credibility was crucial and found no error with the Judge’s admission of the pharmacy records. Even ignoring the pharmacy records, the Appellate Division pointed out that the judge found the petitioner lied about filling prescriptions from other doctors and there was no error in considering evidence regarding the 2015 incident. 

Although the petitioner argued the judge ignored the stipulations, which were to focus on the issue of the nature and extent of permanent disability, the Appellate Division disagreed. The judge found no objective medical evidence or material lessening due to the 2007 incidents and the petitioner’s credibility impacted any finding of permanency for the 2009 incident. The Appellate Division confirmed that providing medical treatment did not necessarily mean a finding of any partial permanent disability.
 

 

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Thought Leadership

Supreme Court of Pennsylvania Holds That Public Policy Does Not Prevent Insurance Coverage for Sex Trafficking Claims

On July 21, 2026, the Supreme Court of Pennsylvania issued an opinion emphasizing the limited circumstances in which courts may invoke public policy to bar insurance coverage, holding in Samsung Fire & Marine Insurance Co., Ltd. (U.S. Branch) v. RI Settlement Trust that Pennsylvania public policy does not preclude coverage for claims alleging that insureds enabled or profited from human sex trafficking. The decision rejects a line of federal district court decisions predicting otherwise and reinforces that Pennsylvania courts will invoke the public policy doctrine only in the clearest of circumstances. RI Settlement is particularly significant because it arose on certified questions from the United States Court of Appeals for the Third Circuit, giving the Supreme Court the opportunity to resolve an issue on which federal courts had predicted Pennsylvania law differently. RI Settlement arose out of four separate civil complaints in which the underlying plaintiffs alleged that, as minors, they were the victims of human sex trafficking at various hotels in Philadelphia. The plaintiffs claimed that the hotel owners were negligent in failing to stop the sex trafficking from happening at their hotels. After the filing of the lawsuits, the hotel owners sought coverage under their Commercial General Liability policies. The insurers initially defended the hotels under Reservation of Rights letters, though the carriers later filed Declaratory Judgment actions seeking declarations that they did not owe a duty to defend or indemnify. In short, the insurers argued in the alternative that they did not owe any obligation to provide coverage based upon Pennsylvania public policy (because the claims violated the Human Trafficking Law – 18 Pa.C.S. § 3011) and the terms and conditions of the policy. On motions for judgment on the pleadings, the District Court found for the insurers on the basis of public policy: There is no duty to defend or indemnify against actions arising out of an insured's criminal conduct related to the sex trafficking of minors. The Court appreciates that it may make public policy the basis of a judicial decision only in “the clearest of cases.” See Minnesota Fire & Cas. Co. v. Greenfield, 589 A.2d 854, 868 (Pa. 2004) (quoting Hall v. Amica Mut. Ins. Co., 648 A.2d 755, 760 (Pa. 1994)). Yet, the Court strains to imagine a clearer case than the one presented here in which the facts alleged indicate that Policyholders engaged in criminal conduct in violation of Pennsylvania's Human Trafficking Law. The hotel owners appealed the matter to the Third Circuit, which petitioned the Supreme Court of Pennsylvania to grant review of two certified questions of law: (1) whether Pennsylvania law had an “overriding public policy” against sex trafficking, such that an insurer’s duty to defend and/or indemnify is abrogated when an insured is alleged to have enabled or profited from such trafficking; and (2) if yes, is that duty abrogated whenever the insured’s alleged conduct would constitute a violation of the Pennsylvania Human Trafficking statute. Importantly, the certified questions did not ask the Supreme Court to determine whether the policies afforded coverage under their terms. Rather, the court was asked only whether Pennsylvania public policy independently barred coverage. As a result, the court assumed for purposes of answering the certified questions that the insurers otherwise owed a duty to defend and addressed only the public policy issue, leaving all policy-based coverage defenses for further proceedings. Because the court concluded that the answer to the first certified question was “no”, it did not reach the second issue. In reaching its determination that Pennsylvania public policy does not prohibit insurance coverage for sex trafficking claims, the court limited the impact of its decision in Minnesota Fire & Cas. Co. v. Greenfield, 855 A. 2d 854, 855 (Pa. 2004), which the RI Settlement opinion emphasized as having been an “Opinion Announcing Judgment of the Court” – or a plurality opinion. In Greenfield, the insured homeowner was sued by the estate of his houseguest who overdosed from heroin that he sold to her. The matter wound its way to the Supreme Court, which determined that the insurer did not owe a duty to defend or indemnify based upon Pennsylvania public policy, which criminalized the sale and use of heroin as a Schedule I narcotic. In RI Settlement, the court “decline[d] the invitation” to extend the rationale of the three-justice plurality in Greenfield beyond cases involving Schedule I controlled substances. In so holding, the justices in RI Settlement refused to “divine an overriding public policy pronouncement by the General Assembly by virtue of its enactment of the Human Trafficking Law.” The opinion further states that it is not “within the purview of this Court to rank the magnitude of the public policy underlying the various crimes defined in the Crimes Code. It is sufficient for the work of the courts to know that the General Assembly has identified conduct it deems harmful and dangerous to the maintenance of an orderly society and criminalized it.” While the court declined to declare that Pennsylvania public policy prohibits coverage for sex trafficking claims, the opinion in RI Settlement expressly states that insurers are free to include appropriate exclusionary language for such causes of actions in their policies if they desire to do so. It will certainly be interesting to see whether the insurance industry accepts the court’s invitation, or perhaps whether the Pennsylvania legislature steps in to clarify that sex trafficking claims are indeed of the type or magnitude that they should not be covered by insurance. In any event, we will, of course, continue to monitor this and other insurance coverage issues that arise before courts in Pennsylvania, New Jersey and throughout our firm’s geographic footprint and around the country.

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