Workers' Compensation Defense

NEWS

Kiara Hartwell’s (Mount Laurel, NJ) article “A Workers’ Compensation Judge’s Approval of a Section 20 Settlement Can Be Contingent on a Petitioner’s Live Testimony” appeared in the December 2023 issue of Defense Digest. You can read her article here. 
 

RESULTS*

Kristopher Starr (Wilmington, DE) received a favorable decision from the Industrial Accident Board. The claimant had been injured in a compensable, accepted work accident where he sustained an injury to his lumbar spine (ligamentous). However, he had pre-existing degenerative pathology in the spine. We filed a Petition for Review to end temporary total disability benefits, alleging the claimant could work within restrictions. The claimant filed a petition for additional compensation, demanding approval of a lumbar discogram and ongoing total temporary disability benefits. The Board held that conservative treatment was appropriate, including TFESI injections, and that the lumbar discogram was not reasonable. Two MRI studies evidenced resolving soft tissue injury to the lumbar spine ligaments, and the claimant did not present as a surgical candidate. The employer’s doctor was found persuasive as to the issue of lumbar discography. The claimant’s doctor conceded, under cross-examination, there were no neurologic deficits evidencing radiculopathy on successive exams. Considering the evidence and the Health Care Practice Guidelines, the Board determined discography was not reasonable. A DACD Petition was granted in part and denied in part. As to indemnity, Kris presented vocational evidence and a Labor Market Survey showing no wage loss for positions within the claimant’s work restrictions. Kris indicated that Hoey v. Chrysler did not apply as the claimant was advised he could no longer be accommodated and was obligated to look for work. The claimant’s physician agreed, under cross-examination, that the claimant could work the Labor Market Survey jobs (all sedentary positions) and that the claimant was not totally disabled. Ongoing indemnity benefits were denied and our petition for review was granted. No appeal is anticipated by the claimant.

Frank Wickersham (King of Prussia, PA) successfully defended a Claim Petition on behalf of a national trucking company where the answer was late without a reasonable excuse. Frank persuaded the workers’ compensation judge that the Claim Petition was not well-pled as to the main allegation, which was that the claimant suffered a disabling aggravation of a pre-existing cervical condition from a fall at work. Frank further convinced the judge that the claimant did not meet his burden of showing that he aggravated a pre-existing cervical condition from his fall. The claimant’s expert admitted on cross-examination that when he first saw the claimant about one month after the work incident, he already had a head droop from a cervical fusion that was done five months before the date of injury. According to this expert, 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.

Kacey Wiedt (Harrisburg, PA) achieved the following successful results:
•    Successfully prosecuted a Modification Petition where the workers’ compensation judge found that the claimant’s benefits are to be reduced based upon an earning power assessment. The judge found our medical and vocational experts more credible than the claimant’s experts that the claimant had an earning power of $610.00 per week.
•    Successfully defended a Claim Petition where the workers’ compensation judge found that the claimant did not sustain a work-related wrist injury due to repetitively lifting cardboard boxes at work. The judge found our employer’s witnesses more credible and persuasive than the claimant, who testified that he was performing this task for a short period of time and that his medical issues are related to his diabetes, not an overuse injury in accordance with our medical expert opinion.
•    Successfully prosecuted a Termination Petition where the workers’ compensation judge found that the claimant was fully recovered from his back injury, which was previously accepted as a “lumbar sprain, L4-5 disc herniation with aggravation of degenerative spondylosis and spinal stenosis at L4 causing radiculopathy.” The judge found our medical expert more credible than the claimant’s medical expert.

Judd Woytek (King of Prussia, PA) achieved the following successful results:
•    Successfully defended a survivor’s claim for Federal Black Lung benefits. The miner had worked 11 years in the coal mine industry, and the parties stipulated that he had simple coal workers’ pneumoconiosis at the time of his death. Judd presented credible medical evidence to show that the miner’s pneumoconiosis did not cause or contribute his death, and benefits were denied. 
•    Successfully defended a claim for a right shoulder sprain/strain, impingement and SLAP tear. Based upon the fact witness and medical expert testimony that Judd presented, the workers’ compensation judge limited the injury to a right shoulder sprain/strain, limited disability benefits to a closed period of four months and terminated benefits as of the date of our IME. 
•    Along with Audrey Copeland (King of Prussia, PA), successfully defended the claimant’s appeal from a workers’ compensation judge’s decision (that had been affirmed by the Workers’ Compensation Appeal Board), which found that the claimant’s temporary total disability benefits should be reinstated as of the date he filed his Reinstatement Petition based upon Protz following a pre-Protz IRE. 

*Prior Results Do Not Guarantee a Similar Outcome
 

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_{What’s Hot in Workers’ Comp, Vol. 28, No. 1, January 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.}