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What's Hot in Workers' Comp

What's Hot in Workers' Comp - News and Results

What’s Hot in Workers’ Comp, Vol. 25, No. 3, March 2021

March 15, 2021

NEWS

On March 11, Niki Ingram (Philadelphia) was an invited speaker for the Philadelphia Association of Defense Counsel’s “How Women Judges and Lawyers Succeed During Challenging Times.” Niki joined an esteemed panel of judges and lawyers offering advice on how to move forward, while overcoming obstacles, juggling work life with personal life and maintaining civility.

Ashley Eldridge (Philadelphia) is speaking at the “Personal Injury Potpourri” webinar on April 20, hosted by The Dispute Resolution Institute. The day-long event will feature discussion on various topics, including recent case analysis, COVID-19 and workers’ compensation, new disciplinary rule regarding referral fees, Common Pleas update and much more. For more information, click here. 

Michele Punturi (Philadelphia) is speaking at the 2021 CLM Workers’ Compensation and Retail, Restaurant & Hospitality Conference to be held virtually on May 12-14. In “Changing the Employee Safety and Wellness Mindset to Reduce Workers’ Compensation Costs and Avoid Liability,” Michele will be part of a panel discussion that will focus on changing the claims management mindset surrounding employee safety and wellness to drive down workers’ compensation costs and avoid liability exposure. Today’s litigious environment, particularly considering COVID-19, calls for an innovative approach that might include self-reporting programs and dedicated medical case management teams to help employers spot issues before they become costly claims. For more information, click here.

Michele Punturi (Philadelphia), Tony Natale (Philadelphia), Jessica Julian (Wilmington) and Ben Durstein (Wilmington) presented the webinar “Workers’ Compensation Winter Roundup” for Pennsylvania and Delaware claims professionals. The webinar addressed current issues in workers’ compensation, including IREs and the use of TNCPs in Pennsylvania, and Medical Only Agreements and use of the Employer Form in Delaware. A recent Delaware case that is the first COVID-19 decision to come down in the state was also discussed.

 

RESULTS*

Kacey Wiedt (Harrisburg) was successful in prosecuting a modification petition, changing the claimant’s indemnity benefits from temporary total to partial disability based upon a labor market survey. After showing that the claimant had an earning power based upon the labor market survey, the judge modified the claimant’s future indemnity benefits, even though the claimant was unemployed due to the accepted work-related back injury. Kacey was also successful in defending the claimant’s review petition to expand the nature of his injury from the acknowledged injury of a lumbar sprain even though the claimant had a permanent spinal cord stimulator implant in his back.

In another matter, Kacey prevailed on a claim petition, defending his client, a bedding company, on a claim petition which alleged that the injured worker sustained upper extremity injuries as a result of her sewing position. Kacey was able to show through medical evidence and the employer’s testimony that the claimant failed to provide notice of the injury in a timely fashion and that the claimant was neither credible nor persuasive that she sustained a repetitive trauma injury as a result of her job duties.

Kacey obtained a favorable decision from the Workers’ Compensation Appeal Board, reversing the underlying judge’s decision pertaining to the employer’s entitlement to a credit for wages paid to a school teacher pursuant to a collective bargaining agreement. The Board granted credits for wages received by the injured worker through the school district’s collective bargaining agreement, allowing offsets against the claimant’s future entitlement to wage loss benefits.

Michele Punturi (Philadelphia) successfully defended the claimant’s reinstatement petition on behalf of a multi-national car manufacturer. The claimant sustained a work injury on October 18, 2004, in the nature of bilateral strain/sprains CMC osteoarthritis and bilateral dequervains, which was accepted through a Notice of Compensation Payable. Thereafter, the claimant received various periods of disability and periods of return to work, for which benefits were suspended pursuant to Bureau documents and a stipulation. The claimant’s benefits remained on a suspension status as of March 31, 2011. On February 5, 2020, the claimant filed a reinstatement petition. Michele adamantly argued that the petition should be dismissed as the statute of repose bars the claimant’s entitlement to any benefits as he had received in excess of 500 weeks of partial disability status—the claimant received 12.4 years and had not filed the reinstatement petition within three years after the date of his most recent payment of benefits. The judge concluded that the petition was barred pursuant to § 413(a) of the Act and emphasized the Supreme Court’s decision in Cozzone v. WCAB (Pa. Municipal East Goshen Township), which further supported that the claimant’s right to benefits had been extinguished and the petition barred.

Judd Woytek (Allentown) received a favorable decision denying and dismissing the claimant’s claim petition and granting the termination petition. The claim was accepted as medical-only for a low back strain. The claimant then filed a claim petition, seeking wage loss benefits after refusing a modified-duty job offer by the employer. Judd obtained an opinion of full recovery from the IME physician and filed a termination petition. The judge denied the claim petition and granted Judd’s termination petition, finding that the employer had made a good faith offer of employment within the claimant’s restrictions, which she refused to accept. Therefore, the claimant was not entitled to any wage loss benefits. The judge also found that the claimant fully recovered as of the date of our IME and terminated benefits completely as of that date.

Judd also received a favorable decision denying a coal miner’s claim for benefits when the only evidence submitted by his widow was the death certificate that listed severe chronic obstructive pulmonary disease (COPD) as the primary cause of death. The Department of Labor claims examiner agreed with Judd’s position that the death certificate alone was insufficient evidence to sustain the claimant’s burden of proving that her husband had totally disabling coal workers’ pneumoconiosis during his lifetime. Benefits were denied.

*Prior Results Do Not Guarantee A Similar Outcome

 

What’s Hot in Workers’ Comp is prepared by Marshall Dennehey Warner Coleman & Goggin 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 © 2021 Marshall Dennehey Warner Coleman & Goggin, 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

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Result

Summary Judgment Secured for Life Insurance Agent

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. 

Thought Leadership

New Jersey Appellate Division Affirms Exclusion of Legal Malpractice Expert as Impermissible Net Opinion

Jack Slimm and Jeremy Zacharias obtained a favorable decision on behalf of their client in a case centering on the admissibility of expert testimony in legal malpractice actions. In Martin v. Loury, the New Jersey Appellate Division affirmed the exclusion of a plaintiff's legal malpractice expert, holding that the expert's opinions on causation and damages were too speculative to support the malpractice claim. The legal malpractice action arose from an underlying employment dispute involving claims for damages stemming from the breach of an employment agreement. The plaintiff alleged that defense counsel committed malpractice during a second trial by failing to recall the plaintiff as a rebuttal witness after the employer's CEO testified. According to the plaintiff's expert, additional rebuttal testimony would have bolstered the plaintiff's damages claims and led to a more favorable result. Both the trial court and the Appellate Division rejected that theory. The courts found that the expert could not explain how the proposed rebuttal testimony would have altered the outcome of the underlying case or resulted in any additional recoverable damages. Notably, the trial judge in the underlying employment matter had already rejected the CEO's testimony as not credible and had accepted the damages analysis advanced by the plaintiff. The court had also determined that the amount of damages was not genuinely disputed. As a result, the expert's opinion that additional rebuttal testimony would have produced a better outcome was unsupported by the record and based on speculation rather than evidence. The Appellate Division agreed that neither the plaintiff nor the expert could identify any actual damages attributable to the alleged malpractice or demonstrate the required element of proximate causation. The court further upheld the trial court's application of New Jersey's net opinion doctrine, finding that the expert failed to provide the necessary "why and wherefore" supporting his conclusion that the attorney's conduct caused a compensable loss. Because the opinions rested on unquantified possibilities rather than demonstrable facts, they were inadmissible. Key Takeaway for Legal Malpractice Defendants For attorneys and firms defending legal malpractice claims, Martin v. Loury underscores the importance of closely scrutinizing an opponent's expert report on the critical elements of proximate causation and damages. The decision demonstrates that a malpractice claim cannot survive where an expert merely speculates that different litigation tactics might have produced a better result. Instead, the plaintiff must present admissible expert testimony grounded in the record that explains how the alleged attorney error probably changed the outcome of the underlying matter and resulted in measurable damages.

Thought Leadership

Court Allows Recklessness and Punitive Damages Claims to Proceed After Work‑Zone Crash

In a case where a defendant filed preliminary objections against allegations of recklessness and punitive damages, the Susquehanna County Court of Common Pleas denied these preliminary objections. This case stems from a motor vehicle accident, where the defendants car struck the plaintiffs car after the defendant allegedly fell asleep at the wheel, going at a high rate of speed, through a construction work zone. Defendant first objected to the general allegations throughout the plaintiff’s complaint pertaining to “reckless” conduct contending that there were insufficient factual allegations to support the claim of reckless conduct. Defendant next objected to the plaintiffs claim for punitive damages, as punitive damages may only be assessed against a motorist for falling asleep while driving if there is further evidence to prove driver was aware of their drowsiness and risk of falling asleep. Lastly, defendant objected to plaintiffs complaint, claiming it lacked specificity. The court here found that the plaintiff had included in the complaint specific allegations related to the defendant’s alleged recklessness, including allegations regarding speeding in a work zone, almost striking the flagger, falling asleep at the wheel, and striking the plaintiffs vehicle which was stopped. Additionally, the court noted that falling asleep does not come without warning. The court found that these allegations were sufficient to support an allegation of recklessness at the pleadings stage.

Casey Alan Coyle Joins Marshall Dennehey's PA Appellate Practice as a Shareholder in Harrisburg and Philadelphia

News

Marshall Dennehey Expands Leading Pennsylvania Appellate Practice With Addition of Shareholder Casey Coyle

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

News

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

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.

Portrait of Carolyn Schweizer, with text below: Philadelphia Office Managing Attorney

News

Marshall Dennehey Names Carolyn Schweizer New Philadelphia Office Managing Attorney

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

Thought Leadership

Supreme Court of Pennsylvania Holds That Public Policy Does Not Prevent Insurance Coverage for Sex Trafficking Claims

On July 21, 2026, the Supreme Court of Pennsylvania issued an opinion emphasizing the limited circumstances in which courts may invoke public policy to bar insurance coverage, holding in Samsung Fire & Marine Insurance Co., Ltd. (U.S. Branch) v. RI Settlement Trust that Pennsylvania public policy does not preclude coverage for claims alleging that insureds enabled or profited from human sex trafficking. The decision rejects a line of federal district court decisions predicting otherwise and reinforces that Pennsylvania courts will invoke the public policy doctrine only in the clearest of circumstances. RI Settlement is particularly significant because it arose on certified questions from the United States Court of Appeals for the Third Circuit, giving the Supreme Court the opportunity to resolve an issue on which federal courts had predicted Pennsylvania law differently. RI Settlement arose out of four separate civil complaints in which the underlying plaintiffs alleged that, as minors, they were the victims of human sex trafficking at various hotels in Philadelphia. The plaintiffs claimed that the hotel owners were negligent in failing to stop the sex trafficking from happening at their hotels. After the filing of the lawsuits, the hotel owners sought coverage under their Commercial General Liability policies. The insurers initially defended the hotels under Reservation of Rights letters, though the carriers later filed Declaratory Judgment actions seeking declarations that they did not owe a duty to defend or indemnify. In short, the insurers argued in the alternative that they did not owe any obligation to provide coverage based upon Pennsylvania public policy (because the claims violated the Human Trafficking Law – 18 Pa.C.S. § 3011) and the terms and conditions of the policy. On motions for judgment on the pleadings, the District Court found for the insurers on the basis of public policy: There is no duty to defend or indemnify against actions arising out of an insured's criminal conduct related to the sex trafficking of minors. The Court appreciates that it may make public policy the basis of a judicial decision only in “the clearest of cases.” See Minnesota Fire & Cas. Co. v. Greenfield, 589 A.2d 854, 868 (Pa. 2004) (quoting Hall v. Amica Mut. Ins. Co., 648 A.2d 755, 760 (Pa. 1994)). Yet, the Court strains to imagine a clearer case than the one presented here in which the facts alleged indicate that Policyholders engaged in criminal conduct in violation of Pennsylvania's Human Trafficking Law. The hotel owners appealed the matter to the Third Circuit, which petitioned the Supreme Court of Pennsylvania to grant review of two certified questions of law: (1) whether Pennsylvania law had an “overriding public policy” against sex trafficking, such that an insurer’s duty to defend and/or indemnify is abrogated when an insured is alleged to have enabled or profited from such trafficking; and (2) if yes, is that duty abrogated whenever the insured’s alleged conduct would constitute a violation of the Pennsylvania Human Trafficking statute. Importantly, the certified questions did not ask the Supreme Court to determine whether the policies afforded coverage under their terms. Rather, the court was asked only whether Pennsylvania public policy independently barred coverage. As a result, the court assumed for purposes of answering the certified questions that the insurers otherwise owed a duty to defend and addressed only the public policy issue, leaving all policy-based coverage defenses for further proceedings. Because the court concluded that the answer to the first certified question was “no”, it did not reach the second issue. In reaching its determination that Pennsylvania public policy does not prohibit insurance coverage for sex trafficking claims, the court limited the impact of its decision in Minnesota Fire & Cas. Co. v. Greenfield, 855 A. 2d 854, 855 (Pa. 2004), which the RI Settlement opinion emphasized as having been an “Opinion Announcing Judgment of the Court” – or a plurality opinion. In Greenfield, the insured homeowner was sued by the estate of his houseguest who overdosed from heroin that he sold to her. The matter wound its way to the Supreme Court, which determined that the insurer did not owe a duty to defend or indemnify based upon Pennsylvania public policy, which criminalized the sale and use of heroin as a Schedule I narcotic. In RI Settlement, the court “decline[d] the invitation” to extend the rationale of the three-justice plurality in Greenfield beyond cases involving Schedule I controlled substances. In so holding, the justices in RI Settlement refused to “divine an overriding public policy pronouncement by the General Assembly by virtue of its enactment of the Human Trafficking Law.” The opinion further states that it is not “within the purview of this Court to rank the magnitude of the public policy underlying the various crimes defined in the Crimes Code. It is sufficient for the work of the courts to know that the General Assembly has identified conduct it deems harmful and dangerous to the maintenance of an orderly society and criminalized it.” While the court declined to declare that Pennsylvania public policy prohibits coverage for sex trafficking claims, the opinion in RI Settlement expressly states that insurers are free to include appropriate exclusionary language for such causes of actions in their policies if they desire to do so. It will certainly be interesting to see whether the insurance industry accepts the court’s invitation, or perhaps whether the Pennsylvania legislature steps in to clarify that sex trafficking claims are indeed of the type or magnitude that they should not be covered by insurance. In any event, we will, of course, continue to monitor this and other insurance coverage issues that arise before courts in Pennsylvania, New Jersey and throughout our firm’s geographic footprint and around the country.