Workers' Compensation Defense

NEWS

Congratulations to Kiara Hartwell (Mount Laurel, NJ), who was elected a shareholder of the firm effective January 1, 2025. A member of the Workers’ Compensation Department since 2016, Kiara devotes her practice to defending employers, insurance carriers and self-insureds in workers’ compensation matters. She authors the New Jersey updates for our What’s Hot monthly workers’ compensation newsletter and frequently writes for external publications. Admitted to practice in New Jersey and Pennsylvania, Kiara is a graduate of New York University and Rutgers University School of Law.

Heather Byrer Carbone (Jacksonville, FL) was recently honored with the John J. Schickel Professionalism and Excellence Award by the E. Robert Williams Inn of Court. Well deserved!

On February 12, 2025, Michele Punturi (Philadelphia, PA) will join a panel at CLM 2025 Focus Conference: Work Comp, Casualty and Risk Management in Lake Buena Vista, FL. In “Workers’ Comp Risk Management Best Practices: Insights from High-Risk Industries,” the panel will address the ongoing challenges of workers’ compensation in high-risk industries. The presenters will share customized risk management strategies, from talent acquisition and safety program development to effective injury management for smooth employee reintegration. For more information, visit https://lm.theclm.org/event/showeventdescription/29195. 
 

 

RESULTS*

Benjamin Durstein (Wilmington, DE) received a favorable decision from the Industrial Accident Board. The Board accepted the testimony of the employer’s medical expert, which acknowledged lumbar spine and cervical spine injuries related to a work accident, although they fully resolved and the claimant returned to his preexisting baseline condition. 

Tony Natale (King of Prussia, PA) reports five recent successful outcomes for our clients. In the first case, Tony successfully defended a Berks County mushroom farm from a claimant’s appeal challenging a full recovery termination award issued by the underlying court, as well as a dismissal of a penalty request/review challenging the nature of the adjudicated injury. The claimant alleged on appeal that the underlying decision of the court was predicated upon “hired-gun” experts and the court should have “nullified” this evidence. Interestingly, as pointed out in the litigation, the claimant was the only party that relied on a “treating expert,” who was hired by the claimant attorney’s to become the “treating physician” in the case. The Appeal Board systematically rejected the claimant’s “appeal to hypocrisy,” and the underlying court decision was affirmed in entirety.

Tony also successfully defended a Pennsylvania medical equipment manufacturing company in the litigation of claim and penalty petitions. The Claim Petition involved an alleged shoulder injury with a judgment on the pleadings due to a late answer. Tony forced the claimant to admit on cross examination that he left work due to reasons other than the alleged shoulder injury. Tony also forced claimant’s medical expert to admit that the claimant was actively treating for a pre-existing shoulder condition which he withheld from the court and the defense expert. The court found the claimant and his expert not to be credible and dismissed all petitions in their entirety, resulting in a complete defense verdict.

Tony received a full defense verdict on behalf of a Pennsylvania medical equipment manufacturing company in the litigation of a claim petition involving an alleged ankle and Achilles Tendon injury. The claimant alleged, while “stepping backwards” at his work station, he felt immediate pain. Tony cross examined the claimant’s medical expert and established that this expert did not treat the claimant for his ankle or Achilles Tendon, was unaware the claimant had a prior ankle fracture with surgery, and admitted the current surgery and disability were the result of a degenerative condition arising out of the prior, unrelated ankle fracture. 

Tony also successfully defended a Montgomery County police department in the litigation of a Claim Petition. The claimant, a police officer, attended an out-of-state extended-stay educational conference. One evening after the conference activities ended, the claimant attended a “booze cruise” where she was imbibing with conference attendees, and she continued to socialize and party back at the hotel. Later that night, she entered her hotel suite (which was shared with another female officer), shining her flashlight in order to change clothes. While changing, her roommate became perturbed over the ruckus. An argument between the two officers ignited and soon thereafter full-fledged fisticuffs. The claimant alleged physical injuries, post-concussive syndrome, mental injuries and total disability. Tony cross examined the claimant and developed an evidence supporting she was not in the course and scope of employment at the time of injury. Tony also presented medical witnesses to support that the claimant did not suffer from post-concussive syndrome or any disabling physical or mental injuries. 

In a workers’ compensation case of first impression in Pennsylvania, Tony successfully defended a Berks County mushroom canning facility from a Claim Petition alleging repetitive trauma injuries to the upper extremities. The claimant worked as a machine operator and alleged that over time his duties caused nerve injuries to both upper extremities. Tony presented medical expert testimony which supported the existence of these nerve damage conditions in the upper extremities but challenged causation. In a modified Frye challenge to the claimant’s medical expert opinions, Tony argued through expert testimony that the state of science and medicine overwhelmingly supports the fact that “repetitive trauma” is not a substantial contributing factor to the development of carpal tunnel and cubital tunnel syndromes. While the court allowed the claimant to present expert testimony to the contrary, it ultimately found Tony’s expert testimony opinions to outweigh the claimant’s experts’ testimony. The court concluded for the first time in Pennsylvania that carpal tunnel syndrome and cubital tunnel syndrome is not borne out through alleged repetitive trauma. 

Andrea Rock (Philadelphia, PA) received a favorable decision where the judge terminated the claimant’s wage loss and medical benefits and denied claimant’s Review Petition to expand the nature of injury based on the opinion of the independent medical examiner. The claimant’s Petition to Review alleged the work injury included cervical radiculopathy, requiring surgical intervention, as well as disfigurement. After reviewing deposition testimony from the claimant, her treating physician and the independent medical evaluator, the judge was specifically persuaded that the claimant did not sustain a cervical spine injury; thus, the surgery was not related as her complaints to her neck did not begin until nearly a week after the original fall. Thus, the claimant’s medical and indemnity benefits were terminated and the review petition was dismissed in its entirety. 

Robert Schenk (Philadelphia, PA) successfully had the claimant’s Claim Petition denied by the judge, and in doing so, the judge found the claimant’s testimony as not credible. Robert established the claimant did not report a work-related injury until after she had been advised light-duty work was only available for employees injured on the job, along with surveillance evidence showing the claimant returning and working on the date of injury with no apparent injury. The claimant’s testimony about prior injuries was also in conflict with contemporaneous hospital records and those medical records showed the claimant had prior low back problems, with no new trauma being reported to the emergency room on the date of injury. 

In another matter, the judge granted Robert’s Petition to Review Medical Treatment. This would have been a termination petition, but the employer’s medical expert found the claimant fully recovered from only two of the three injuries. The judge found the testimony of the employer’s medical expert credible and granted the petition.

In a final case, Robert defended a Claim Petition where the judge awarded wage loss benefits for only three months and then terminated benefits based on the medical opinion of the employer’s medical expert.

A. Judd Woytek (King of Prussia, PA) received three favorable decisions recently. In the first case, Judd successfully defended a Claim Petition that alleged a hip and low back injury. Judd presented video evident showing the claimant limping when he arrived at work the day of the alleged injury. The workers’ compensation judge credited the video and the opinions of our medical expert in denying and dismissing the Claim Petition. 

In a second case, Judd successfully prosecuted a termination petition, arguing a full recovery from a left hand and low back injury. The workers’ compensation judge credited the opinions of our medical expert, that the claimant had fully recovered from his injuries. 

Finally, Judd successfully obtained orders in two separate cases directing the claimants to appear for IMEs as they had no valid excuse for their failure to appear for the IMEs the first time.

*Prior Results Do Not Guarantee a Similar Outcome 

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_{What’s Hot in Workers’ Comp, Vol. 29, No. 1, January 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.}