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What's Hot in Workers' Comp

The Appellate Division Affirms Dismissal of Petitioner’s Three Claim Petitions for Failure to Sustain Burden of Proof.

Lindell v. W.H. Indus., Inc., No. A-1815-20 (App. Div. June 1, 2022)

July 1, 2022

by Kiara K. Hartwell

The petitioner began working for the respondent in 1999. In 2001, she was struck by a car and her right hand went through the windshield. She underwent surgery to repair her hand and another later to remove a neuroma. She also underwent pain management treatment, therapy and medication. She was diagnosed with right hand reflex sympathetic dystrophy (RSD)/complex regional pain syndrome (CRPS).

In 2009, the petitioner filed two claim petitions—for June 27, 2007, and September 14, 2007, incidents—in which she allegedly injured her right hand. She was still receiving treatment at the time of the June 27, 2007, incident. She then filed a third claim petition for a right hand injury on August 12, 2009. The petitioner stopped working then and alleged her pre-existing RSD/CPRS was aggravated by these incidents. The respondent filed its answers for the June 27, 2007, and August 12, 2009, incidents, confirming the incidents arose out of and in the course of employment and paying all benefits.

After the 2007 incidents, the petitioner was authorized to continue treatment with Dr. Schlifstein until care was transferred to Dr. E. Freeman in 2013. Dr. Freeman treated the RSD/CPRS diagnosis, but he never made a causation determination as the petitioner had come to him with that condition. He relied on the petitioner’s subjective complaints, noting she had a “very mild case” of RSD/CPRS “if you believe her subjective complaints.”

On September 21, 2015, the petitioner was riding her bicycle when she was hit by a car. Eight days after, she saw Dr. Freeman, claiming she had a flare-up of pain due to weather, but she never told him about the car accident. She did not disclose it to him as she was “fuzzy” due to the loss of a family member. In 2016, she underwent cervical and lumbar surgeries and failed to disclose them to Dr. Freeman, even though she saw him shortly before or after the surgeries. Dr. Freeman found out about the 2015 incident after being advised by the respondent in 2017. The petitioner also saw Dr. Schlifstein after the 2015 incident, but allegedly only for her left side, and he prescribed various medications. Dr. Freeman noted he was unaware the petitioner was getting treatment and prescribed medication by other doctors. Dr. Freeman noted the petitioner filled prescriptions from other providers while under his care after a review of pharmacy records.

Dr. Freeman was called as a witness by the petitioner. He testified that there was no evidence the 2009 work incident caused RSD or that it became worse. He confirmed that after the 2015 incident, the petitioner had pain flare-ups, which could have been related to the surgeries after the 2015 incident. Dr. S. Dane, the petitioner’s expert neurologist, then testified that the RSD/CPRS was aggravated by the 2009 incident, but no subsequent aggravation. He confirmed the petitioner did not tell him about the 2015 incident or surgeries when he initially examined her in 2017. He noted that many of her complaints could have been the result of cervical radiculitis due to the surgery, that the RSD diagnosis was based on her subjective complaints, and he only had one progress note from Dr. Schlifstein prior to the 2009 incident.

The respondent’s expert, Dr. C. Effron, testified, noting no objective findings of RSD and that there was no permanent disability to her right hand. 

The Workers’ Compensation Judge dismissed all three claim petitions for failure to sustain her burden of proof. The judge found the petitioner intentionally did not tell Dr. Freeman about the 2015 incident, that her assertion she only saw Dr. Schlifstein for her left side to be “blatantly absurd,” and “incredible” that Dr. Freeman did not ask her about changes in her medical history. She found Dr. Freeman to be credible and believed Dr. Effron’s testimony that the petitioner failed to disclose the 2015 incident. Overall, the judge found the nondisclosure of the 2015 incident, coupled with her lying about filling multiple doctors’ prescriptions, damaged the petitioner’s credibility. The judge also noted the petitioner stopped working after the 2009 incident, but provided no expert opinion that she was 100% disabled or that she was unable to work.

The petitioner appealed, arguing she met her burden of proof and the judge erred in various aspects. The Appellate Division disagreed, noting the judge’s assessment of credibility was crucial and found no error with the Judge’s admission of the pharmacy records. Even ignoring the pharmacy records, the Appellate Division pointed out that the judge found the petitioner lied about filling prescriptions from other doctors and there was no error in considering evidence regarding the 2015 incident. 

Although the petitioner argued the judge ignored the stipulations, which were to focus on the issue of the nature and extent of permanent disability, the Appellate Division disagreed. The judge found no objective medical evidence or material lessening due to the 2007 incidents and the petitioner’s credibility impacted any finding of permanency for the 2009 incident. The Appellate Division confirmed that providing medical treatment did not necessarily mean a finding of any partial permanent disability.
 

 

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Firm Highlights

Thought Leadership

The Ohio Supreme Court Extends Sham-Affidavit Rule to Contradictory Expert Reports

Legal Roundup: Ohio In its June 23, 2026, decision in Moore v. Mercy Medical Center, the Ohio Supreme Court upheld a trial court’s decision to strike an expert witness’s affidavit that contradicted the opinions expressed in the expert’s prior report. This case pertains to allegations of medical malpractice after plaintiff Cheri Moore gave birth to an infant in respiratory distress who required intubation. Moore alleged that a delay in ordering an emergency cesarean section resulted in the need for intubation, causing her child’s injuries. Specifically, Moore sued Dr. Meniru, who completed his first shift at 7:00 a.m. on May 28, 2015, and did not resume treating Moore until 7:00 a.m. on May 29, 2015. One of Moore’s expert witnesses authored a report stating that the doctors, including Dr. Meniru, deviated from the standard of care by not advocating for a cesarean section in the evening of May 28, 2015. Based on this report, Dr. Meniru moved for summary judgment, arguing that the alleged breach occurred during a period when he was not on duty. In response to the summary judgment motion, the plaintiff filed an affidavit from the same expert. Although the expert expressly incorporated his previous report into his affidavit, he also offered an additional opinion: that Dr. Meniru breached the standard of care by failing to begin a cesarean section within 30 minutes of receiving reports of fetal distress. Dr. Meniru filed a motion to strike the expert’s affidavit, arguing that it contradicted the opinions set forth in his prior report in violation of the sham-affidavit rule. The sham-affidavit rule applies to “a contradictory affidavit that indicates only that the affiant cannot maintain a consistent story, or is willing to offer a statement solely for the purpose of defeating summary judgment”. Moore, supra, at ¶ 19, citing Pettiford v. Aggarwal, 126 Ohio St.3d 413, 2010-Ohio-3237. The trial court granted both the motion to strike and the motion for summary judgment, and the Fifth District affirmed. The Ohio Supreme Court accepted two questions of law: (1) whether the sham-affidavit rule applies when the sworn testimony contradicts prior unsworn statements; and (2) whether an inconsistency within the affidavit goes to credibility or admissibility, justifying an order striking the affidavit. Previous rulings by the Ohio Supreme Court regarding the sham-affidavit rule have pertained to contradictions between an affidavit and sworn deposition testimony. See, e.g., Byrd v. Smith, 2006- Ohio-3455, 110 Ohio St.3d 24, 850 N.E.2d 47. However, here, the Court was asked to apply the same rule to contradictions between a sworn affidavit and an unsworn expert report. The Court held that, because Moore’s expert incorporated his prior report into his affidavit, he effectively adopted the report as part of his sworn testimony.

Thought Leadership

Pennsylvania Superior Court Reaffirms Liberal Pleading Standard in Medical Malpractice Actions

Legal Roundup: Pennsylvania The Pennsylvania Superior Court has reinforced a broader fact-pleading approach that may make it more difficult for health care defendants to obtain dismissal at the preliminary objection stage. In DaSilva v. Abington Memorial Hospital, the court held that the plaintiffs’ second amended complaint satisfied Pennsylvania’s fact‑pleading requirements despite the absence of individually named negligent actors. In DaSilva, the plaintiffs filed a second amended complaint alleging that Abington Memorial Hospital was directly and vicariously negligent after the patient, who was experiencing a mental health crisis, was left unattended by hospital staff, exited the emergency department, and was struck by a vehicle, suffering serious injuries. The trial court sustained the hospital’s preliminary objections and dismissed the complaint with prejudice, stating plaintiffs “failed to plead any material factual allegations in support of their claims of negligence [and] set forth vague allegations of negligence and unidentified agency.” Id. at *5. The plaintiffs appealed. On appeal, the Superior Court reversed, holding that the complaint sufficiently pled negligence and vicarious liability claims under Pa.R.C.P. 1019(a). The court concluded that allegations describing the patient’s condition, the hospital’s awareness of that condition, and the alleged failure to monitor or prevent elopement were adequate to satisfy Pennsylvania’s pleading requirements. Significantly, the court rejected the hospital’s argument that the complaint failed because it did not identify the specific employees responsible for the alleged negligence. Instead, the court found that generalized references to “emergency room staff” were sufficient to place the hospital on notice of the claims because “the names of those who performed services for the plaintiff are known to the defendant or can be ascertained during discovery.” Id. at *12 (citing Est. of Denmark ex rel. Hurst v. Williams, 117 A.3d 300, 307 (Pa. Super. 2015)). The effect of DaSilva is that plaintiffs may proceed past the pleading stage with relatively generalized allegations, particularly in cases involving institutional defendants where relevant details are uniquely within the defendant’s control. As a result, health care defendants should anticipate that challenges to claim sufficiency may be resolved in the later stages of litigation, including discovery and summary judgment.

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106 Marshall Dennehey Attorneys Recognized in the 2027 Editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America

Marshall Dennehey is proud to highlight the firm’s 106 attorneys who have been recognized in the 2027 editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America. Less than 6% of all practicing lawyers in the U.S. were selected by their peers for this recognition. Additionally, four of the firm’s attorneys received the Best Lawyers® 2027 “Lawyer of the Year” awards 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/. OUR 2027 LAWYERS OF THE YEAR Harrisburg, PA Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers Compensation Law - Employers Roseland, NJ Justin F. 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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.