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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. 29, No. 9, September 2025

September 1, 2025

RESULTS*

Ryan Hauck (Pittsburgh, PA) successfully defended a Claim Petition that alleged multiple orthopedic fractures and dislocations to the upper extremity, hip and bilateral lower extremitie along with payment of past and future wage loss and medical benefits. The workers’ compensation judge fully adopted our position that the claimant’s injuries did not arise in the course and scope of employment. Through strategic reliance on case law, focused cross-examination and close collaboration with the employer to define property boundaries within a commercial complex, we established that the claimant was injured off the premises during an unpaid lunch break, was not furthering the employer’s interests, and was not engaged in any activity authorized, directed or otherwise related to her employment at the time of her injury. This resulted in a complete denial of the claim and significant savings in litigation spend because the issue was bifurcated before having to participate in costly medical discovery and evidence.

Michael Sebastian (Scranton, PA) was successful in having workers’ compensation benefits suspended on behalf of a multinational food corporation. We filed a Suspension Petition based upon the claimant’s employment prior to being taken out of work. The claimant filed a Reinstatement Petition for a right CTS claim and a Claim Petition for the left CTS claim. The claimant also also filed UR Petitions related to her treatment with Dr. Mercado and Dr. Patel. Prior to the decision, we accepted the left-sided CTS as work related. The issue to be decided by the workers’ compensation judge was whether the claimant was entitled to a reinstatement of benefits because her job required her to work in a cold environment. In the decision, the judge noted that, when the claimant was working, she did not have to touch the cold meat which was on a conveyor belt andshe also wore gloves and cold weather clothing while performing the position. The judge noted that Dr. Martinez did not know the temperature of the claimant’s hands with gloves on nor did he know the temperature of the plant. The judge noted that Dr. Martinez testified that if the claimant’s hand temperature with gloves on was between 70–80 degrees, that should be okay. The employer’s witness testified to an experiment measuring hand temperature with gloves on; her hand temperature with the glove on was initially 87 degrees and, after 3–3.5 hours on the floor, it was 75 degrees. Dr. Talsania testified that cold temperature does not affect CTS. The judge found the claimant’s testimony and Dr. Martinez’s testimony not credible and found the employer’s witness and Dr. Talsania credible in all respects. She also found the UR reports credible concerning the claimant’s treatment. The judge suspended the claimant’s benefits effective May 23, 2024, finding she was capable of performing the quality monitor position in the cold environment. The judge also found that Dr. Mercado’s and Dr. Patel’s treatment after April 11, 2024, were not reasonable or necessary.

Michael Sebastian (Scranton, PA) was successful in having a Claim Petition denied and dismissed. The workers’ compensation judge noted that during her cross examination, the claimant was unsure exactly what day she was injured and that she denied telling co-workers she was injured falling down steps at home. He also noted the claimant denied the histories she gave to the medical providers regarding the location of her back pain, i.e., left vs. right. The judge also noted the claimant reported the date of injury as April 3, 2024, to medical providers and denied having a conversation with the insured. Regarding the employer’s witnesses, he noted that Ms. Woronko testified that the claimant was walking gingerly at work on April 1, 2024, and that she indicated she did something to her back and had to go home, but the claimant did not indicate it was work-related. Mrs. Ellsworth did not recall the claimant getting injured, contrary to the claimant’s testimony. This witness indicated that the claimant told her she was injured at home on Friday when she fell down the stairs. She noted that on April 5, 2024, the claimant was barely able to walk and was breaking down in tears. She also indicated that, had the claimant told her the injury was work-related, she would have reported it. Finally, Ms. Gerrity testified that the claimant had the handbook and went out of work because of her back on April 5, 2024. The claimant called her on a Friday or Saturday, indicating that she had to go to the doctor, but she did not indicate it was work-related. She learned the claimant was claiming it was work-related from another employee, so she told the claimant to fill out an accident report. The judge also accurately summarized the testimony of the claimant’s expert, Dr. Henderson, and our expert, Dr. Banas. On cross examination, Dr. Henderson was unable to explain how the claimant’s symptoms went from the right side to the left side and that the claimant did not complain of S1 joint problems, i.e., left-sided symptoms, until six weeks after the injury. The judge found the claimant not credible due to her inconsistent testimony and did not accept her testimony that she suffered a work-related injury. He found the employer’s witnesses credible and that they sufficiently rebutted the claimant’s testimony. He accepted Mrs. Ellsworth’s testimony that the claimant fell down the stairs at home prior to the alleged incident. The judge also accepted the testimony of Dr. Banas over Dr. Henderson, finding that the claimant only had a lumbar strain and had fully recovered. The judge determined that the claimant failed to meet her burden of proof that she sustained a work-related injury and was not entitled to disability benefits.

Benjamin Durstein (Wilmington, DE) successfully had a Petition to Determine Compensation Due dismissed. Following an evidentiary hearing, the Industrial Accident Board determined that the claimant did not meet the burden to prove there was any accident that constituted an “untoward event” that occurred on February 1, 2022, which is a required element of the Nally successive carrier/subsequent accident analysis. Nally requires that an “untoward event” beyond the normal duties of employment is required in order to shift liability from the first employer/carrier to the subsequent employer/carrier. 

Benjamin Durstein (Wilmington, DE) was successful in having a Petition to Determine Compensation Due dismissed. The Industrial Accident Board denied a claimant’s petition, in which she alleged she injured her right ankle, both upper extremities and low back during the course and scope of her employment on April 12, 2022.  The Hearing Officer did not find the claimant’s account of the accident to be credible given the inconsistencies with her actions before and after the work accident and the lack of supporting evidence.

*Prior Results Do Not Guarantee a Similar Outcome 

 

NEWS

We are proud to highlight the Workers’ Compensation Department’s 13 attorneys who have been recognized in the 2026 editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America in the area of Workers’ Compensation Law – Employers. 

Our 2026 Best Lawyers in America:

Our 2026 Best Lawyers: Ones to Watch:

Less than 6% of all practicing lawyers in the U.S. were selected by their peers for this recognition. 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/. 

 

What’s Hot in Workers’ Comp, Vol. 29, No. 9, September 2025, 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 © 2025 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

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. 

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

Thought Leadership

Vendor Cyber Attack Compromises PII of More Than 3 Million Hunting and Fishing License Holders in Texas

The Texas Parks & Wildlife Department (TPWD) announced earlier this month that one of its vendors which handles the sale of state hunting and fishing licenses was the victim of a cybersecurity attack. The threat actor appears to have exfiltrated personal driver’s license information, passport numbers, email addresses, phone numbers and addresses of over 3 million hunting and fishing license holders.  The State Parks Department advised that the attack did not compromise social security numbers, dates of birth or financial information. Texas Cyber Command, the state’s new cybersecurity authority formed to protect critical infrastructure and coordinate threat responses across state and local government, reportedly assisted in detecting and containing the attack. TPWD has already set up free credit monitoring for those impacted through Kroll.  According to press reports, no specific group has yet been identified as the perpetrator of the theft. TPWD also advised that business has not been interrupted and license sales were continuing. This incident once again demonstrates that cybersecurity is only as strong as the weakest link in the supply chain. Businesses must prioritize security across their own environments and those of their vendors and contractors as well.

Congratulations to our 2026 Florida Super Lawyers & Rising Stars: Elizabeth Ferguson, A.C. Nash, Taylor Naughton, Sophia Philor, Amara Rodriguez

News

Marshall Dennehey Announces 2026 Florida Super Lawyers & Florida Rising Stars

Thought Leadership

The Enforceability of Online Arbitration Agreements Remains Unresolved in Pennsylvania, But the Pennsylvania Superior Court has Provided Substantive Guidance on the Issue

Key Points: The Pennsylvania Supreme Court confirms that an order compelling arbitration is not immediately appealable as collateral orders. The outcome of Chilutti II has generally left the substantive enforceability issues with browsewrap agreements unresolved in Pennsylvania. Until this issue is resolved by the Pennsylvania courts, companies operating in the Commonwealth should strive to ensure that their registration websites and/or application screens conspicuously present arbitration agreements in manners which ensure their users and consumers assent to the terms of the agreements by following the standards set forth in Chilutti I. Browsewrap agreements have been defined as agreements “‘in which a website offers terms that are disclosed only through a hyperlink and the user supposedly manifests assent to those terms simply by continuing to use the website,’ and typically do not require an electronic signature.” See, Cobb v. Tesla, Inc., 2026 WL 458470, at *1 n. 2 (Pa. Super. Feb. 18, 2026) (citation omitted). They are largely regarded as the “if you keep using this, you agree to everything buried in this link” terms embedded into almost every online agreement consumers and users sign before proceeding with purchases of goods and/or services. While consumers are generally aware of them, many almost never click on the link, nor read them in their entirety. This leaves many consumers and users ignorant of the terms and impact of such agreements. However, one’s ignorance of the otherwise neatly-tucked-away terms rarely renders them unenforceable. The issue of the enforceability of browsewrap agreements has been up for debate for some time in many jurisdictions, including Pennsylvania. Indeed, Pennsylvania had a brief grip on this issue for a period in time. Specifically, in 2023, an en banc Superior Court set forth heightened standards for companies to meet in order to secure assent and enforce browsewrap arbitration agreements. See Chilutti v. Uber Techs., Inc., 300 A.3d 430 (Pa.Super. 2023) (en banc) (“Chilutti I”) Chilutti I involved a husband and wife who sued Uber and its subsidiaries after the wife, a wheelchair bound passenger using Uber’s rideshare service, fell, struck her head, and lost consciousness due to her uber driver failing to provide a seatbelt and making an aggressive turn during the trip. The Chilutti’s filed a negligence lawsuit against Uber and its subsidiaries. In response, the defendants moved to compel arbitration, arguing that “the couple’s conduct on the company’s website and application — when they registered for the ridesharing service — signified that they agreed to be bound by the mandatory arbitration provision found in the hyperlinked terms and conditions.” The trial court granted the defendants’ petition and stayed the proceedings pending the results of arbitration, and the Chilutti’s appealed. On appeal, the Superior Court addressed two issues. First, it addressed the issue of whether it had jurisdiction to hear the appeal. A divided Superior Court determined that it did, with its basis for the holding being that the order from which the Chilutti’s appealed was a collateral order. Next, the Superior Court set out to address the merits of the Chilutti’s substantive claim. The Superior Court concluded that the parties lacked a valid agreement to arbitrate. Its rationale was that Uber’s website and application did not provide reasonably conspicuous notice of the terms to the Chiluttis. In reaching this decision, the en banc Superior Court held that browsewrap arbitration agreements are enforceable in Pennsylvania only if the registration website and application screens explicitly inform consumers that they are waiving the right to a jury trial, the registration process cannot be completed until the consumer is fully informed of this waiver, and, when the agreement is available via hyperlink, the waiver appears at the top of the first page of the terms in bold, capitalized text. Since the ruling, Pennsylvania courts have applied Chilutti I to determine if browsewrap agreements are enforceable.  For instance, the Allegheny County Court of Common Pleas invoked Chilutti I to reject an agreement that lacked an express jury-trial waiver on the assent screen.  See Miller v. Festival Fun Parks, LLC, 92 WDA 2025 (C.P. Alleg. Cnty. Mar. 24, 2025). Similarly, the Superior Court has held that notice which failed to explicitly state the consumer was waiving a jury-trial right did not “me[e]t the strict burden set forth by our en banc Court in Chilutti I.” Pierce v. FloatMe Corp., 348 A.3d 1077, 1088 (Pa. Super. 2025). While the issue of enforceability of browsewrap agreements appeared to have been resolved by Chilutti I, Pennsylvania courts’ grip on this issue has been slackened by the Pennsylvania Supreme Court’s January 21, 2026, opinion in Chilutti II. See Chilutti v. Uber Techs., Inc., 349 A.3d 826 (Pa. 2026) (“Chilutti II”). Therein, the Supreme Court did not address the merits of the Chiluttis’ substantive claim, but rather the issue of whether the Superior Court had appellate jurisdiction to immediately review the orders staying litigation pending arbitration. The Court ultimately vacated the en banc opinion on jurisdictional grounds, holding that the Superior Court did not have appellate jurisdiction because the trial court’s order from which the Chiluttis appealed did not qualify as a collateral order and, thus, the Superior Court erred in holding to the contrary and lacked jurisdiction to entertain the merits” of the Chiluttis’ substantive claim. As such, Chilutti II has rendered Chilutti I nonbinding, and the issue of enforceability of online arbitration agreements remains unresolved. However, in light of the fact the Supreme Court did not address or comment on the merits of the Chiluttis’ appeal, Chilutti I is still meaningful. Specifically, it provides guidance as to the standards a company should strive to meet to ensure they have obtained users’ assent so that they are able to enforce online arbitration agreements. Additionally, it may serve as persuasive authority in judges’ evaluations of petitions and/or motions to compel browsewrap arbitration agreements until this particular issue is properly put before our appellate courts. Keanna works in our Pittsburgh, PA office. She can be reached at (412) 803-1174 or KASeabrooks@MDWCG.com.

Result

Unanimous Verdict Obtained in a Medical Malpractice Matter in Bergen County, New Jersey

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

Thought Leadership

Featured Conversations... Key Takeaways from A.M. Best’s Webinar on the Misuse Defense in Product Liability Claims, Featuring Michael Salvati

Michael Salvati, shareholder in our Philadelphia office, was a panelist for the April A.M. Best webinar, “The Misuse Defense: Strategic Approaches to Defending Product Liability Claims for Insurers.” During the program, Michael and his fellow panelists offered practical, jurisdiction‑specific guidance on how misuse and failure‑to‑warn theories intersect in modern product liability litigation. Michael emphasized the unique challenges these claims present—particularly in states like Pennsylvania, where evidentiary rules diverge sharply from those applied in many other jurisdictions. Failure to Warn as the “Flip Side” of Misuse Salvati explained that failure‑to‑warn allegations often arise as a direct counter to a misuse defense. As he noted, “If our misuse defense is that the plaintiff didn't use a product properly or safely, then the failure to warn claim is that we didn't tell them how to use it properly.” He emphasized that these claims can stem from either the absence of warnings or criticisms of existing warnings, such as insufficient specificity or lack of clarity about risks. Pennsylvania’s Unique Evidentiary Landscape One of Salvati’s most notable points was the stark difference in how Pennsylvania treats evidence of compliance with industry standards. He highlighted that Pennsylvania is “one of the only states…where that evidence is not admissible” in strict liability cases. Manufacturers cannot rely on compliance with ANSI, UL, ISO, or even federal safety standards to defend the product against a strict liability claim—because the focus is solely on the product itself, not the manufacturer’s conduct. Salvati acknowledged the challenge this creates for defense counsel and clients who expect such compliance to carry weight. Understanding the Three Defect Theories Salvati also walked through the three primary defect theories recognized in many jurisdictions: - Design defect – a flaw in the product’s intended design - Manufacturing defect – a deviation affecting a specific unit - Failure to warn – inadequate instructions or warnings He noted that warnings claims are increasingly significant and sometimes stand alone when design or manufacturing theories are weak. As he put it, plaintiffs often default to warnings claims because “the default position seems to be, ‘If I got hurt, there must be something wrong.’” Warranties and State‑by‑State Variations Salvati addressed how breach‑of‑warranty claims fit into the broader framework, explaining that implied warranties—such as merchantability—often overlap with strict liability in Pennsylvania. He emphasized the importance of understanding local nuances, as warranty law and admissibility rules vary widely across states. Looking Ahead: The Growing Importance of Warnings In his closing remarks, Salvati stressed that warnings should never be treated as an afterthought in product liability defense. He observed that warnings‑only claims are becoming more common and urged manufacturers and insurers to continually evaluate the clarity and completeness of their instructions and warnings. His takeaway: “We should always be talking about what are the instructions that come with our products…to bolster a misuse defense.” Listen to the complete webinar here: https://www3.ambest.com/conferences/events/eventregister.aspx?event_id=WEB1074.

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.

News

Veteran Trial Attorney Joseph M. Toddy Joins Marshall Dennehey’s Casualty Department in Philadelphia