Workers' Compensation Defense

NEWS

Marshall Dennehey is proud to highlight the firm’s Workers’ Compensation Department attorneys who have been recognized in the 2024 editions of The Best Lawyers in America® and Best Lawyers: Ones to Watch™ and 2024 “Lawyers of the Year” in their respective practice areas and demographic regions. 

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For more information, please visit https://www.bestlawyers.com/.

2024 LAWYERS OF THE YEAR
Pittsburgh: Daniel Deitrick, Workers’ Compensation Law – Employers
Harrisburg: Shannon Fellin, Workers’ Compensation Law – Employers 

2024 BEST LAWYERS IN AMERICA 
Harrisburg, PA

• Brigid Alford, Insurance Law; Litigation – Insurance 
• Kacey Wiedt, Workers’ Compensation Law – Employers 

King of Prussia, PA

• Frank Wickersham, Workers’ Compensation Law – Employers 

Scranton, PA

• Ross Carrozza, Workers’ Compensation Law – Employers 
• Michael Sebastian, Workers’ Compensation Law – Employers 

Philadelphia, PA

• Michele Punturi, Workers’ Compensation Law – Employers 

Pittsburgh, PA

• Daniel Deitrick, Workers’ Compensation Law – Employers 

Wilmington, DE

• Keri Morris-Johnston, Workers’ Compensation Law – Employers 

2024 BEST LAWYERS: ONES TO WATCH
Jacksonville, FL

• Kelly Scifres, Workers’ Compensation Law – Employers 

Wilmington, DE

• Benjamin Durstein, Workers’ Compensation Law – Employers 

Heather Byrer Carbone (Jacksonville, FL) was a panelist at the Workers’ Compensation Institute (WCI) Annual Conference in Orlando. In “Hot Topics for Attorneys,” representatives from both the claimant and defense bars discussed the most important and controversial case law decided by Florida appellate courts and the most relevant amendments to the law enacted by the Florida Legislature. As the nation’s largest workers’ compensation conference, this event brings together workers’ compensation professionals from across the country for an enhanced learning and educational experience.

Eli Hassinger (Philadelphia, PA) authored the article, “Pa. High Court Doubles Down on the Workers’ Comp Act’s Exclusivity Provision,” for Pennsylvania Law Weekly. You may read the article at this link: Click here. 

Andrea Rock (Philadelphia, PA) presented a webinar as part of the Philadelphia Bar Association Workers’ Comp Compliance Crusher 2023: Update on Important Issues in Workers' Compensation Practice. In “Navigating the Medicare Maze,” Andrea and plaintiff’s counsel co-panelist discussed the basics of Medicare, including who exactly is a Medicare Beneficiary and the reasonable expectation of Medicare enrollment. They highlighted how knowing the Medicare laws, the intricacies of Medicare Set-aside allocations, the effect of conditional payments, and the impact Medicare can have on settlement, are all imperative in the representation of clients.

 

RESULTS*

Tony Natale (Philadelphia, PA) successfully defended a Lebanon, Pennsylvania-based pharmaceutical manufacturer in the litigation of a claim petition. The claimant alleged an injury in the form of a fractured and crushed femur as a result of a fall off the roof of the manufacturing plant. Tony was able to convince the court that the claimant was not in the course and scope of employment at the time of the fall. Despite the claimant’s allegation that he was on the roof of the facility in the middle of the night to perform work duties, the court accepted rebuttal testimony and forensic evidence from the scene of the fall which proved that the claimant was taking a clandestine unauthorized smoke break on the roof of the facility and, therefore, not furthering the interests of the employer. The claimant also tested positive for marijuana after the fall and was ultimately discharged for cause. No benefits of any kind were awarded.

Tony Natale (Philadelphia, PA) successfully prosecuted a review petition on behalf of a 125-year-old manufacturer of power and grounding connectors and accessories, which challenged by way of causation a major surgery the claimant underwent after a work injury. The claimant injured her upper extremity at work. Many months later, she had a major surgery and alleged it was related to the injury. Tony convinced the court that the surgery was due to a genetic condition present prior to the work injury and that the condition was not aggravated by the work injury. All medical bills and disability related to the surgery were dismissed.

Tony Natale (Philadelphia, PA) successfully prosecuted a review petition filed on behalf of a Philadelphia-based insurance company. The underlying claim involved a specific loss amputation injury that was mistakenly accepted as compensable with a Lost Time Bureau document. The specific loss benefit rights expired upon receipt of the requisite number of weeks of benefits related to the claimant’s amputation injuries, but the Lost Time Bureau document remained open. The issue before the court was whether the carrier could challenge an open notice of compensation payable (now many years old) with an allegation that the injury was a specific loss from its inception. After effective legal wrangling, the court granted the review petition and closed out the indemnity benefits by finding the injury was at all times a specific loss.

Michele Punturi (Philadelphia, PA) and Audrey Copeland (King of Prussia, PA) convinced the Pennsylvania Commonwealth Court to affirm the decisions of the Appeal Board and the Workers’ Compensation Judge granting a petition to terminate benefits in favor of the firm’s client, the employer, an international automotive manufacturing corporation. The court found the Board did not err by affirming the judge’s finding that the employer established a change in the claimant’s medical condition, as the judge did not solely rely on the claimant’s testimony, but had credited the testimony of the employer’s medical expert of claimant’s full recovery. 
 
Andrea Rock (Philadelphia, PA) and Audrey Copeland (King of Prussia, PA) obtained a favorable decision from the Commonwealth Court, which affirmed the Appeal Board’s order upholding the judge’s decision denying a claim petition. The court rejected the claimant’s argument that the judge’s decision did not meet the “reasoned decision” requirement of Section 422(a) of the Pennsylvania Workers’ Compensation Act and that the claim petition should be granted for at least a limited period. The court agreed with the employer that the judge did not arbitrarily and capriciously disregard the employer’s medical witness’ testimony, that the claimant had sustained a low back strain and sprain that had resolved at the time of his IME. The court observed that the judge discredited the claimant's testimony and rejected the existence of any work-related injury, and that the employer’s expert’s opinion was based on the false history provided by the claimant and did not constitute an admission or competent evidence that a work-related injury occurred. 

Kristopher Starr (Wilmington, DE) defended a claimant’s petition for compensation, alleging injury to the entire left upper extremity (hand, wrist, elbow, shoulder) and neck from a work accident. The claimant claimed this injury resulted in carpal tunnel to the left wrist, cubital tunnel to the left elbow, internal derangement/injury to the left shoulder and a neck/cervical spine traction/pull injury. The claimant presented two Philadelphia-area orthopedic surgeons/specialists—Dr. Michael Birns, a shoulder specialist, and Dr. Julie Mayberry, a hand specialist. On behalf of the employer, Kris presented Dr. Jonathan Kates, an orthopedic surgeon. The claimant’s petition was denied in all respects. Key to this determination was evidence presented by Kris that the claimant started with complaints and treatment to the bilateral upper extremities for nerve injury well prior to his employment and the alleged work accident. The claimant had undergone a carpal tunnel release prior to his employment with the employer. Also, Kris’s cross-examination of the claimant’s shoulder expert limited his testimony to the left shoulder and produced the doctor’s admission that he was not qualified to address the left wrist, elbow or neck. The employer’s expert medical witness opined that the bilateral upper extremity nerve symptoms likely represented a neck nerve problem that pre-existed the work injury and caused a “double crush syndrome” emanating from the neck. The Board found the employer’s medical expert to be persuasive and credited the testimony of this witness, as well as Kris’s presentation of evidence demonstrating that many of the symptoms pre-existed the alleged work accident. Further, the Board found the cross-examination of the claimants specialist, Dr. Birns, effectively limited any evidence to the left shoulder only, which the Board did not find persuasive. The claimant’s petition was denied. 

John Swartz (Harrisburg, PA) was able to have claim and penalty petitions denied and dismissed in their entirety, and no litigation costs were awarded. The claimant had filed a claim petition seeking indemnity benefits for a low back injury allegedly occurring on April 26, 2022. In order to defend the petition, John presented two medical experts and testimony from the employer. John also presented evidence of failed drug tests of the claimant and criminal conviction records. The judge accepted our evidence and concluded the claimant did not suffer a disabling work injury.

John Swartz (Harrisburg, PA) successfully defended a claim petition seeking benefits. The claimant was injured on December 1, 2021, described as a right hand, right arm, shoulder, upper extremity and rib injury. The claimant underwent two surgeries. The first occurred in December 2021 as an emergency surgery. Then he had a thoracic outlet surgery performed in February 2023. The case was bifurcated on whether the claimant provided notice within 120 days of the injury as required by § 311 of the Act. The claimant testified on several occasions on this issue. John presented testimony from the employer’s witnesses that the claimant never reported a work injury. The claimant admitted he knew the condition was work-related in December 2021. First notice of the injury was when the claim petition was filed in September 2022, well after the 120-day period. The judge accepted the testimony of the employer’s witnesses on the issue of notice. The claim petition was denied and dismissed.

John Swartz (Harrisburg, PA) was successful in defending the claimant’s appeal to the Appeal Board regarding alleged non-payment of medications related to the claimant’s work injury in the amount of $21,319.08. The claimant sought a 50% penalty as well for non-payment of these medications. The Workers' Compensation Judge denied and dismissed the claimant’s penalty petition. The Appeal Board affirmed the Workers' Compensation Judge’s decision, which was based on the argument that the medical expenses were not specifically related to the accepted injury, which was a L4-5 disc herniation. Therefore, these medications were appropriately denied in their entirety.

*Prior Results Do Not Guarantee a Similar Outcome
 

 

_{What’s Hot in Workers’ Comp, Vol. 27, No. 8, August 2023, 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.}