.

What's Hot in Workers' Comp

What’s Hot in Workers’ Comp - News and Results*

What’s Hot in Workers’ Comp, Vol. 29, No. 8, August 2025

August 1, 2025

 

NOTICE

Beginning September 2, 2025, in Pennsylvania, medical fee review applications will be required to be submitted electronically in WCAIS. Pease reach out to any of our Pennsylvania attorneys if you have questions.

 

RESULTS*

Benjamin Durstein (Wilmington, DE) was successful in having a Petition to Determine Compensation Due, asserting a different date of injury, dismissed. The Industrial Accident Board denied the claimant’s Motion to Amend a Petition to reflect a different date of loss because the amendment was made more than two years from the date of the alleged work accident. The pending petition was dismissed, and any new petition with the “corrected” date of loss was barred by the statute of limitations.

Robin Romano, and Michael McMaster on brief (both of Philadelphia, PA), were successful in having a Claim Petition denied and dismissed. The claimant alleged she was hurt when a customer’s car backed into her on purpose. The claimant was later terminated from employment for belligerence to the customer. The employer’s surveillance video showed that the car barely made contact with the claimant. Fact witness testimony by the employer’s district manager, authenticating the footage and detailing the reasons for her termination, plus the testimony of two defense medical experts, convinced the workers’ compensation judge that the claimant failed to meet her burden of proof.

Robert Schenk (Philadelphia, PA) was successful in having a Claim Petition denied. The claimant alleged he sustained an injury to his right elbow when he tripped and fell at work. The workers’ compensation judge denied and dismissed the claimant’s claim, finding no injury or disability. In doing so, the judge noted that the claimant’s testimony as to how he was injured was completely inconsistent with video from the employer’s workplace. The claimant’s testimony was basically that a pallet jack violently hit him and threw him to the floor, causing his injuries. The video showed the claimant tripping over a pallet jack. It also showed him getting up and continuing to work

Audrey Copeland and Tony Natale (both of King of Prussia, PA) convinced the Commonwealth Court to affirm the decision of the Workers’ Compensation Appeal Board in favor of our client, the employer, which upheld the workers’ compensation judge’s denial of a Claim Petition. By Memorandum Opinion, the court found that the judge’s credibility findings were neither contradictory nor arbitrary and capricious and that the decision was reasoned. The court agreed with the employer that the defense experts’ opinions constituted substantial evidence, also noting that the Social Security Administration’s findings of disability were irrelevant to the issue of work-relatedness. The court concluded that the claimant failed to sustain her burden of proving a work-related injury, and since the causal connection between her “lingering symptoms and her work duties” was not obvious, she was required to present unequivocal medical evidence establishing that connection, which she failed to do. 

Robert Fitzgerald (Mount Laurel, NJ) received a significant positive outcome at trial. The petitioner sustained a significant injury in July 2013 and later filed a claim for permanent/total disability benefits. Given the petitioner’s age and the exposure of the case, had the petitioner been successful at trial, he would have received more than 26 years of benefits; an indemnity exposure of $556,000. Prior to trial, the petitioner refused to accept any settlement offer below permanent/total disability benefits. Trial began on July 8, 2025, with the petitioner’s testimony. Following the petitioner’s testimony, the judge dismissed the petitioner’s claim for permanent/total disability benefits and recommended a partial disability settlement, which equated to approximately $57,000 in total exposure, which the petitioner accepted. 

Michele Punturi (Philadelphia, PA) successfully prosecuted a Termination Petition involving a 65-year-old, 35+ year employee of a renowned international automobile corporation who sustained a left knee injury on June 19, 2023. Michele secured medical records that support a significant pre-existing history—with a prior left knee replacement and treatment leading up to June 1, 2023—and resulted in establishing that the only work injury sustained was a left knee contusion. Further, the opinions of the defense medical expert, a board certified orthopedic surgeon with a sub-specialty in the treatment of the knees, were found competent and credible, supporting a full recovery based upon his comprehensive physical examination and his review of records and diagnostic studies. The workers’ compensation judge further found the employer had a reasonable basis to contest all issues and denied attorney’s fees. Such a decision will result in a substantial recoupment of indemnity and benefits payments made throughout the course of the litigation via a Supersedeas Fund Reimbursement recovery. 

Tony Natale (King of Prussia, PA) successfully defended a Penalty Petition filed which alleged that Supreme Court precedent allows the finding of a penalty when a carrier does not immediately issue an award check after a decision on the merits. The check was issued 19 days after the decision (and within the 30-day time period commonly accepted in the business for payment of awards). The claimant argued that payment should have been made within one day of the award. The case turned on legal precedent concerning the efficacy of statements made in dicta versus common sense practice. The case held implications for procedure on payments of awards in Pennsylvania. After hearing oral argument, the court held that the employer’s argument was more logical and supported by the preponderance of the case law. The Penalty Petition was denied and dismissed by way of complete defense verdict.

Tony Natale (King of Prussia, PA) successfully defended a Claim Petition filed by the claimant, a police officer for the township. The claimant was called to the scene of an active shooter barricaded in his home. The officer was placed in a strategic position outside the home with weapon drawn. The standoff lasted many hours but was resolved peacefully when SWAT arrived. The claimant finished his shift and went home. The next morning he awoke with headaches, nausea, double vision and dizziness. Ultimately, he was diagnosed with mini-stroke, nerve palsy and resultant diplopia—he was disabled from working. He presented a neurologist whose deposition was riddled with objections since the neurologist tried to read into the record (and at times misread into the record) the diagnoses of a neuro-ophthalmologist. The neurologist then tried to argue that the claimant’s condition was a psychological injury in origin. All objections were sustained by the court. The employer presented the opinions of a board certified neuro-ophthalmologist, who opined that the claimant has no work-related injury. The court found the employer’s evidence to be more believable, and the claim petition was dismissed—full defense verdict.

*Prior Results Do Not Guarantee a Similar Outcome 

 

NEWS

Blake Hood (Jacksonville, FL) was recently appointed as co-chair of the Jacksonville Bar Association’s Social Security/Workers’ Compensation Committee. 

Ryan Hauck (Pittsburgh, PA) was recently elected by his peers to serve a two-year term as a Council Member on the Allegheny County Bar Association Workers’ Compensation Section Committee. 

William Murphy (Roseland, NJ) authored the article “Medical Marijuana in New Jersey Workers’ Compensation Law,” which appeared in the New Jersey Law Journal’s Cannabis Supplement published on July 11. The article discusses developments since the 2021 Hager decision (Vincent Hager v. M&K Construction, 246 N.J. 1 (2021) and recent shifts in the legal landscape as state and federal laws have evolved with regard to medical marijuana. You can read the article here.

Elias Hassinger (Philadelphia, PA) recently participated in the firm’s Advanced Trial Advocacy and Mock Trial program. This year marked the 25th anniversary of our cornerstone training program that brings together attorneys from across our 19 offices to try a full civil case in our in-house courtroom. Participants gain invaluable experience under the guidance of senior litigators and alumni. Congratulations to Eli and all of this year’s participants for a job well done! 

 

What’s Hot in Workers’ Comp, Vol. 29, No. 8, August 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

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.

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.

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.

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

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

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. 

empty courtroom photo

Result

Summary Judgment Secured for Life Insurance Agent

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.