.

What's Hot in Workers' Comp

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

What’s Hot in Workers’ Comp, Vol. 28, No. 12, December 2024

December 1, 2024

NEWS

Heather Byrer Carbone (Jacksonville, FL) has been recognized as 2024 Florida Trend “Legal Elite NOTABLE - Women Leaders in Law.” Heather is honored for her impact in the field of law, mentorship, and leadership in professional organizations and civic/community service initiatives. Read the news release here.

On November 20, Tony Natale (King of Prussia, PA) was one of the key speakers at the annual Delaware Valley Workers’ Compensation Trust’s (DVWCT) Claim Prevention seminar. This live event was attended by Risk Control employees, managers, police chiefs, and command staff as well as department heads and local government leadership in the townships and municipalities that are administered by the DVWCT. Tony spoke on the importance of presenting unified and global defenses between workers’ compensation, unemployment compensation, internal grievance arbitration and employment law where applicable in cases involving workplace injuries. Tony was able to give examples of this unified directive, citing a current case in litigation involving all of these areas of law and the blue print used to provide a global defense.

On November 15, The Legal Intelligencer published “Goodbye ‘Yellow Freight’ Road?,” by Judd Woytek (King of Prussia, PA). You can read Judd’s article here.
 

RESULTS*

Michael Duffy (King of Prussia, PA) successfully defended against two review petitions where the claimant sought to expand the description of injury from a right shoulder injury to include cervical and lumbar disc herniations, radiculopathy and various psychiatric injuries. The claimant also sought to increase his average weekly wage to a significantly higher expectation rate. The workers’ compensation judge limited the injuries to the right shoulder and rejected the claimant’s expectation rate argument.

Tony Natale (King of Prussia, PA) successfully had a penalty petition, filed against a local university, dismissed on all counts. The claimant sustained an injury to his low back which was accepted as compensable. The claimant returned to work at a modified job, and his benefits were made the subject of a notice of suspension. The claimant worked for several months and never challenged the suspension notice. Thereafter, the claimant left work when his attorney referred him to a new treating doctor. The carrier made some changes to claim data within the WCAIS system (correcting the claimant’s address). As a result of a glitch in the WCAIS system, a new Notice of Compensation Payable was issued based on this data change. The claimant filed a penalty petition, arguing his benefits must be reinstated based on the issuance of the new Bureau document. Tony presented evidence by way of factual testimony and documentary evidence to demonstrate the fallibility of the WCAIS system and exposed the illogical argument made by the claimant’s attorney to the contrary. The court dismissed the penalty in its entirety.

Tony Natale also successfully defended an giant fashion distribution center in the litigation of a Claim Petition. The claimant filed a work injury claim against the fashion center. The matter was assigned to a workers’ compensation judge, and the employer/carrier failed to file a timely answer, relegating all “well pleaded facts” as an admission against interest. As it turned out, the named employer did not have an employer/employee relationship with the claimant, but the late answer acted as an admission of such a relationship based on the pleadings within the claim. Tony was then referred the case to try to mitigate exposure in light of this negative turn of events. Based purely on oral argument detailing the constitutionally offensive result that would be achieved by the interpretation of the case law surrounding late answers, the court dismissed the Claim Petition in its entirety.

Tony Natale also successfully prosecuted a termination petition on behalf of Pennsylvania cabinetry company. The matter originally began as a settlement of a prior 2009 work injury claim. At the settlement hearing, the claimant chose to forego the settlement after learning through Tony’s cross examination of the potential Medicare issues involved in the claim. The employer/insurer moved forward with a new independent medical exam with a renowned orthopedic surgeon. A termination petition was filed, alleging full and complete recovery from the work-related injury, and the court adopted the defense medical opinions as fact. As a result, all benefits were terminated. 

Rachel Ramsay-Lowe (Roseland, NJ) successfully completed a trial on the issue of whether the claimant had a cognitive disorder and whether the carrier should authorized medical treatment for a spinal cord stimulator. After taking testimony of both doctors, the courts agreed with Rachel’s argument that the claimant’s doctor’s report lacked objective medical findings to reach the diagnosis of cognitive disorder and dismissed this from the overall claim. The claimant also requested a hearing to address the carrier’s denial of a spinal cord stimulator. Rachel made the argument the claimant’s injuries are merely a strain/strain of the lumbar spine and that the claimant failed to meet the medical treatment guidelines, which require the claimant receive a psych evaluation to determine if they are a good candidate for the stimulator. In addition, Rachel successfully argued the treatment currently rendered does not show a failed back surgery or a special circumstance where a stimulator should be granted. The court agreed with Rachel’s argument and found the carrier does not have to provide a spinal court stimulator.

Michael Sebastian (Scranton, PA) successfully defended a Claim Petition, which alleged the claimant suffered a work-related cervical injury on June 29, 2023. The claimant testified that he felt a snap in his back, but did not feel the pain right away, and continued to work until July 17, 2024. He then went to the emergency room and subsequently had surgery on July 20, 2023. During cross-examination, the claimant agreed he only suffered a cervical injury, not a low back injury. He further noted he had a prior low back injury on October 19, 2022, for which he filled out an accident report and was sent to a doctor and received treatment. However, the claimant first reported the June 29, 2023, injury on September 1, 2023, and at that time could not recall a specific event that occurred on June 29, 2023. However, he did confirm he heard a snap in his back when the injury did occur. The claimant also agreed he worked full duty, without reporting the incident, until July 17, 2024.

Dr. Martinez, the claimant’s expert, testified the claimant was a partial quadriplegic in the upper and lower extremities. Dr. Martinez opined the claimant had cervical stenosis with myelopathy and, given his underlying condition, was probably going to have surgery at some point in the future but it was aggravated by the constant use of his neck. 

Dr. Henderson, the defense expert, found no evidence of a work-related injury on June 29, 2023, and that the claimant’s symptoms are consistent with cervical stenosis with myelopathy, which is a degenerative condition. Dr. Henderson opined the claimant’s surgery was for a pre-existing condition and the current treatment is unrelated to any alleged work injury. Dr. Henderson reviewed the MRI from from July 17, 2023, noting there were no acute findings. He also reviewed Dr. Martinez’s testimony, noting the claimant did not have disc herniations and that the surgery was not for disc herniations, but for disc issues in the cervical spine that were degenerative in nature. 

The workers’ compensation judge found the claimant to be not credible to the extent he testified he suffered a work-related injury on June 29, 2023, or any disability related to it. He noted the claimant’s demeanor during the hearing was not credible and that his testimony was called into question based upon the employer’s policy that you must immediately report injuries, as he had in the past. The judge also noted the claimant’s description of the work injury, i.e., a snap in his back, conflicted with documentation and the contemporaneous medical records. He also noted that prior similar complaints made on June 26, 2023, and failed to mention a work-related injury in the July 17, 2023, medical notes. The judge noted that subsequent treatment notes also indicate the injury or condition pre-dated the June 29, 2023, work injury date. 

The judge accepted the testimony of Dr. Henderson over Dr. Martinez, noting that Dr. Martinez did not review the cervical MRI films or reports and did not have the medical records immediately pre-dating the work injury, including Dr. Tayoun’s records. The judge found that Dr. Henderson’s history, opinions and testimony were corroborated by the medical records. Further, the judge emphasized that Dr. Martinez, during cross examination, offered inconsistent and illogical explanations that the claimant’s lumbar complaints and lower extremity findings were related to the lumbar condition prior to the work injury, but after that date they were related to the cervical condition. 

Kacey Wiedt (Harrisburg, PA) secured a decision denying the claimant’s Claim and Penalty Petitions. The claimant, a mechanic, alleged he sustained a right ankle fracture, right ankle abscess, and avulsion fracture of the lateral talus as a result of falling off the back of a pickup truck while removing a truck-cap at work. The claimant asserted he was on the clock and on the employer’s premises when the fall occurred. He claimed he was assisting his employer’s friend in removing his truck-cap from his pickup truck. Through employer witness testimony, Kacey was able to show that the claimant was not in the course and scope of employment when he injured his ankle. Kacey proved the claimant assisted the individual with removing the truck-cap for a purely personal reason and not at the direction of his employer. Kacey also showed that the injury occurred shortly after the claimant’s work shift ended and he had clocked out for the day. 

*Prior Results Do Not Guarantee a Similar Outcome 


 

What’s Hot in Workers’ Comp, Vol. 28, No. 12, December 2024 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 © 2023 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

Thought Leadership

NJ Workers' Compensation Legislation Update

A couple more bills were introduced for the 2026-27 session. Any updates since February have been highlighted in bold. A1023 | S3984 Medical use of cannabis under certain circumstances This requires workers’ compensation, PIP, and health insurance coverage for the medical use of cannabis under certain circumstances. It was introduced on January 13, 2026 and referred to the Assembly Financial Institutions and Insurance Committee. It was also introduced on March 19, 2026 and referred to the Senate Commerce Committee. A1045 Certain injuries to volunteer and professional public safety and law enforcement personnel This revises workers’ compensation coverage for certain injuries to volunteer and professional public safety and law enforcement personnel. It was introduced on January 13, 2026 and referred to the Assembly Labor Committee. A3724 Personal liability to employer officers for failure to pay for coverage This provides personal liability for owner, executive officer, or executive director of employer for failure to pay for workers' compensation coverage. It was introduced on January 13, 2026 and referred to the Assembly Labor Committee. On May 7, 2026, it was reported and referred to Assembly Judiciary Committee. A4617 Certain workers' compensation supplemental benefits and funding method This concerns certain workers' compensation supplemental benefits and funding method. For a permanently and totally disabled worker or surviving dependents after December 31, 1979, with some exceptions, this bill provides for an annual cost of living adjustment in the weekly workers’ compensation benefit rate. It was introduced on March 10, 2026, and referred to the Assembly Labor Committee. S241 Inclusion in database of appointed officials This requires that workers’ compensation judges and administrative law judges be included in database of appointed officials. It was introduced on January 13, 2026 to the Senate, Referred to Senate State Government, Wagering, Tourism & Historic Preservation Committee. A1870 | S1379 Workers' compensation benefits for certain workers due to September 11, 2001, terrorist attacks This provides workers’ compensation benefits for certain public safety workers who developed illness or injury as result of responding to September 11, 2001 terrorist attacks. It was introduced on January 13, 2026 and referred to the Assembly Labor Committee. It was also introduced on the same day and referred to the Senate Labor Committee. On February 5, 2026, it was reported from the Senate Committee, 2nd Reading, and referred to the Senate Budget and Appropriations Committee. A2779 | S1521 Excludes Certain Illegal Aliens This excludes certain illegal aliens from workers’ compensation and temporary disability benefits. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. A2792 | S1555 Prevent Intoxicated Employees from Workers’ Compensation This prevents intoxicated employees from receiving workers’ compensation. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. S2290 Increase Mandatory Retirement Age This increases statutory mandatory retirement age for Supreme Court Justices, Superior Court Judges, Tax Court Judges, Administrative Law Judges, and Workers’ Compensation Judges from 70 to 72. It was introduced on January 13, 2026, and referred to the Senate Judiciary Committee. A3167 | S2372 Workers’ compensation insurance requirements for certain corporations and partnerships. This concerns workers’ compensation insurance requirements for certain corporations and partnerships. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. A1384 | S2757 Reduce Statute of Limitations in Medical Fee Disputes This reduces statute of limitations from six years to two years in medical fee disputes in workers’ compensation matters. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. S3144 Testimony in Workers’ Compensation This concerns submission of testimony in workers’ compensation claims. It was introduced on January 13, 2026, and referred to the Senate Labor Committee. S3342 Increase Mandatory Retirement Age This increases statutory mandatory retirement age for Supreme Court Justices, Superior Court Judges, Tax Court Judges, Administrative Law Judges, and Workers’ Compensation Judges from 70 to 75. It was introduced on February 5, 2026, and referred to the Senate Judiciary Committee. A3548 | S3571 Maximum benefits for certain volunteers This provides certain volunteer and other workers with maximum compensation benefit for workers' compensation claim regardless of outside employment.. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. On March 2, 2026, it was reported from the Senate Committee, 2nd Reading, and referred to the Senate Budget and Appropriations Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. On May 7, 2026, it was reported and referred to Assembly State and Local Government Committee.

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. 

News

Tiere J. Phillips Elected to the Judicial Committee of the Allegheny County Bar Association

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.

Thought Leadership

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

RESULTS* Ben Durstein (Wilmington) obtained a favorable decision involving a claimant who fractured his patella in a work accident requiring two surgeries. The IAB rejected the claimant’s medical expert’s opinion that he sustained a 25% permanent impairment to the right lower extremity. Instead, the board accepted the opinion of the employer’s medical expert that the appropriate permanency was 13% utilizing the 6th Edition of the AMA Guides to the Evaluation of Permanent Impairment. Tony Natale III (King of Prussia) successfully had a claim petition alleging new injuries and periods of disability dismissed based on full recovery. The claimant was injured when his skid loader was struck by another loader in the process of baling hay. Original injuries were accepted and the claimant returned to work. Thereafter, the claimant abandoned work and filed a claim petition to assert new injuries and extended disability. Cross examination of the claimant’s medical expert stunningly revealed his failure to review claimant testimony, his lack of awareness of a social security disability decision detailing the existence of claimant’s alleged work-related conditions prior to the date of work injury, and his failure to understand that the claimant admitted to full recovery of injuries for which he was continuing to treat. Tony Natale III (King of Prussia) successfully obtained a defense verdict in a Medicare conditional payment lien third level appeal. The United States government alleged a Medicare conditional lien payment was due and owing in the upper six-figure range based on an auto accident and PIP policy for which the government conditionally became the primary carrier. The government argued that our client, the PIP carrier, was the primary payer and, under federal law, must reimburse the government for its conditional lien payment. At the third-level appeal hearing, the government’s position was refuted by the revelation that the date of injury tied to the medical bills associated with the lien was glaringly and chronologically prior to the insurer’s PIP policy date. The court held that based on this evidence and argument, the government could not meet its requirements to assert a lien against our client. A. Judd Woytek (King of Prussia) and John Abda (Scranton) successfully had a workers’ compensation claim petition granted for medical benefits only for a closed period with no wage loss awarded. The claimant alleged multiple injuries as the result of a very minor motor vehicle incident where a co-worker’s delivery van rolled down an incline of approximately six feet, and bumped into the rear of the claimant’s delivery van. He claimed he was thrown forward and suffered head and neck injuries, along with aggravating a pre-existing ankle injury. The claimant was also terminated following the accident for having a large hunting knife in his van, which was against the employer’s workplace violence policy. The judge granted the claim for a mild concussion and an ankle contusion, but terminated medical benefits as of the date of our IME’s. The judge found that no wage loss benefits were payable as the claimant was terminated for cause and work remained available to him. The judge found our medical experts to be more credible than the claimant’s, along with finding our four employer witnesses to all be credible. The trial team was assisted by paralegal Bonnie Zemek (King of Prussia). Eric Scott Thompson (Wilmington) was successful in a workers’ compensation matter in Delaware. On October 15, 2024, the claimant was injured while performing fire training in a multistory building when he tripped over a fire line, injuring his right knee. The claimant received regular and consistent treatment for the right knee through August 29, 2025, when he presented with left knee complaints for the first time. His treating orthopedist diagnosed a hamstring strain. The claimant was next seen October 15, 2025, with continued left knee complaints, and was referred to a total knee doctor within the practice. He was then diagnosed with a posterior root tear of the medial meniscus. Our expert testified that it was not plausible for a lateral hamstring strain to progress to a meniscal tear in two months. The claimant required a total knee replacement that was ultimately performed in February 2026. In the six months between the time of initial presentation with left knee complaints and the total knee replacement, conservative care consisted of a single injection. Our expert testified that posterior root media meniscal tears can respond to conservative care, and it was not known if it would with the claimant because it was not adequately explored. The Industrial Accident Board agreed with our expert and determined that the claimant failed to meet the burden of establishing more likely than not that the left knee complaints were caused by overloading/overuse as a result of the compensable injury to the right knee. They also agreed that the claimant was able to return to work in a sedentary capacity as opined by his physicians and our expert prior to the left total knee replacement and that there were employment opportunities available within his restrictions and capabilities as presented by the vocational expert. As a result, the claimant was no longer entitled to total disability benefits and will receive partial disability benefits for which he is limited to 300 weeks. Michele Punturi (Philadelphia) and Alana Staniszewski (Pittsburgh) had a termination petition granted in a Pennsylvania workers’ compensation case. The petition involved an echocardiography technologist with long-term employment at a local hospital who sustained a right shoulder injury resulting in surgery in January 2024. Following surgery, the claimant was diagnosed with a frozen shoulder and underwent additional surgery in June 2024, with a recommendation for a third surgery. The opinions of the defense medical expert, a Board-certified orthopedic surgeon, were found credible, persuasive, and competent based upon the extensive history he obtained from the claimant, analysis of the mechanism of injury, and review of records, along with comparison of MRIs from October 2023, February 11, 2024, and January 6, 2025, which failed to reveal any causal relationship other than a strain/sprain of the right shoulder. This evidence supported that the claimant had fully recovered, and was not in need of any ongoing medical treatment and/or restrictions. In particular, despite allegations of injuries beyond a sprain/strain, the defense medical expert identified that those allegations were not consistent with what was found at the time of surgery, and elements of the surgery were to treat a chronic and degenerative condition. Additionally there were no ongoing issues or problems with the subscapularis, which was intact, consistent with the follow-up MRI of February 11, 2024, and the claimant did not have evidence of a frozen shoulder. In fact, the MRIs and mechanism of injury, he opined, did not support any injury causing tendonitis or inflammatory conditions within the bicep tendon. Furthermore, multiple days of surveillance footage demonstrated the claimant’s normal use, with the ability to sweep and shovel snow, operate her vehicle, raise her arms above shoulder level, and use a broom – all without any observable difficulty, which challenged the claimant’s credibility of a disability and further established a lack of causation. As a result of this favorable decision, supersedeas fund reimbursement will be obtained for both wage loss and medical benefits through the supersedeas fund recovery process. *Prior Results Do Not Guarantee a Similar Outcome NEWS Heather Carbone (Jacksonville) was a panelist for a webinar hosted by The Workers’ Compensation Claims Professionals (WCCP) Association. As part of the “Meet the Experts” Series, the speakers addressed “Afterthoughts that Undermine a Successful Mediation,” highlighting the pitfalls and challenges of underprepared or unprepared mediation participants. The discussion included appropriate pre-mediation communications, setting of expectations, management of expectations, and working through the unexpected or unprepared. Attendees gained ideas about how and when to prepare, best practices, and the potential for non-parties (spouse, significant other, risk owners-insurers) to have differing perspectives or concerns than the actual employee and employer. On May 21-22, 2026, A. Judd Woytek, (King of Prussia) joined a panel at the CLM Alliance (Claims and Litigation Management Alliance) Work Comp Conference in Nashville to present "We See You: How Employee Engagement Enhances Work Comp Outcomes." Judd and his fellow panelists discussed the positive impact of employee engagement on claim outcomes, return-to-work timelines, and overall claim costs.

News

Marshall Dennehey Again Earns Recognition in Distinguished Chambers USA

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

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.

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

Legislation Proposed to Reduce the Cost of Prescription Topical Drugs

In March, Pennsylvania Senate Bill 1215 was introduced in an effort to address the high cost of prescription topical drugs. According to the bill’s sponsor, the issue is excessive reimbursement rates for topical drugs that are essentially alternate versions of readily available, less expensive over the counter drugs. A study performed by The Workers’ Compensation Research Institute (WCRI), shows that Pennsylvania has the highest share of prescription reimbursements and the highest average quarterly payments for topical drugs.  The proposed bill would provide for payment for each ingredient separately, instead of reimbursing a single inflated price, deny payment if an ingredient lacks a valid National Drug Code, limit total reimbursement to $400 per 30 day supply no matter what ingredients are used, ban reimbursement for compound drugs that duplicate existing commercial drugs, and add a flat $20 compounding fee for pharmacies or physicians who prepare the medication. The goal? To eliminate inflated billing practices and reduce costs for employers and insurers.  Currently, the bill is in committee. We will monitor the proposed legislation as it advances and provide updates as to any significant developments that may occur.