Workers' Compensation Defense

NEWS

Congratulations to Kacey Wiedt (Harrisburg, PA) on his selection to the Central Penn Business Journal’s 2024 Power List for Law! The honorees are some of the Central Pennsylvania region’s most significant, influential, and respected leaders in their fields, as chosen by the CPBJ’s editorial leadership team and readers. Learn more here.

Robert Fitzgerald (Mount Laurel, NJ) spoke at the New Jersey Self Insurers Association annual conference. On April 24, Bob and fellow panelists presented, “Open Mic: Ask the Workers' Compensation Experts.”

Shareholder Andrea Rock (Philadelphia, PA) is a panelist for an upcoming webinar hosted by the Workers’ Compensation Section of the Philadelphia Bar Association on May 17. In “Got Pain? How to Recognize and Assess Pain Including the Identification of Pain Generators in Work Injuries and Novel Treatment Options,” the panelists will discuss the issues with pain generators, treatment options and their interaction in workers’ compensation litigation. To register, click here. 

 

RESULTS*

Benjamin Durstein (Wilmington, DE) was successful before the Delaware Supreme Court. The court affirmed the decisions of the Industrial Accident Board and the Superior Court, holding that the employer correctly paid for ketamine infusion treatment in accordance with the Delaware Fee Schedule. As Ben argued, it was the claimant’s burden—not the IAB’s or the employer’s—to present evidence regarding the adequacy of the billing codes utilized. The court directed the claimant to the Workers’ Compensation Oversight Panel as the correct forum to address whether the Fee Schedule amount payable for treatment constitutes reasonable compensation.

Robert Schenk (Philadelphia, PA) successfully had a Claim Petition denied and dismissed. The claimant, a clinical physical therapist, filed a Claim Petition for an alleged work-related injury to the knee that occurred on November 2, 2022. Surgery was recommended and, although the claimant had health care benefits and short-term disability available from the employer, she was adamant her claim needed to be processed as a workers’ compensation claim. The claimant did not miss time from work because of the injury. The workers’ compensation judge denied and dismissed the Claim Petition, finding the claimant did not sustain a work-related injury. The judge found it significant that the claimant’s prior history of knee problems required constant medical treatment. The judge also found noteworthy the claimant’s failure to move forward with a recommended knee surgery despite having alternative benefits from her employer. Finally, the judge found significant the medical opinion of the employer’s medical expert, who opined that the claimant had loose bodies in her knee which, from time to time, might cause a transient onset of symptoms, but that the need for surgery was related to the pre-existing degenerative changes.

Michael Duffy (King of Prussia, PA) received a favorable decision granting the employer’s termination petition. In this matter, the claimant had sustained injuries to her low back as a result of a work injury wherein she was struck in her back by a coworker opening a door. The claimant alleged she sustained additional injuries, including multiple disc herniations. After subpoenaing records from various providers, Mike was able to show that the claimant had been in multiple car accidents and had prior injuries to her low back that resulted in treatment lasting up to a few months prior to the work injury. The claimant had denied any prior injuries during her testimony before the workers’ compensation judge. The judge found the employer’s expert credible and terminated the claimant’s benefits.

Michael Sebastian (Scranton, PA): 

• Received a favorable decision from the Workers’ Compensation Appeal Board. The claimant had injuries to his cervical, thoracic and lumbar spine. He already had a lumbar fusion and was looking to have surgery on his cervical spine. Mike argued that the claimant was a seasonable employee and had a low average weekly wage (AWW). The workers’ compensation judge found that the claimant was a seasonal employee but did not correctly calculate the AWW, and the Appeal Board found that the claimant was a seasonal employee and calculated his AWW at $60.00 per week. They reversed the judge’s decision on the medical bills, finding that the claimant did not meet his burden of proof. They also reversed the judge’s decision, finding that the claimant did not prove he had C6-7 severe spondylosis and right leg radiculopathy.
• Received a favorable Appeal Board decision on the claimant’s appeal to Judge Snyder’s decision which, in part, suspended the claimant’s benefits. A Claim Petition was filed alleging a work injury and specific loss of half of the left ring and middle fingers and an injury to the left pinky finger. The judge found that the claimant suffered a work injury but did not prove sufficient bone loss to meet the standard for a specific loss. The judge suspended the claimant’s benefits based upon the testimony of the employer’s witness and the claimant’s doctor. During cross examination, the claimant’s doctor testified that the claimant was released to return to work and that a one-armed job was available to the claimant, which he refused. The Appeal Board affirmed the decision on all issues, finding that the bone loss was not a substantial part of the first phalange of a finger. They also upheld the workers’ compensation judge’s findings suspending the claimant’s benefits based upon the claimant’s expert’s testimony that he could perform one-arm work as of the date of the job offer.

*Prior Results Do Not Guarantee a Similar Outcome 

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_{What’s Hot in Workers’ Comp, Vol. 28, No. 5, May 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 © 2024 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.}