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Workers' Compensation

What's Hot in Workers' Comp

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

What’s Hot in Workers’ Comp, Vol. 29, No. 5, May 2025

May 1, 2025

NEWS

Congratulations to A. Judd Woytek, shareholder in our King of Prussia office, on being selected among the “Top Lawyers of the Lehigh Valley” by The Morning Call newspaper. Judd was recognized for Workers’ Compensation litigation.

Michael Duffy (King of Prussia) is presenting as part of PBI and PBA Workers’ Compensation Law Section “Tough Problems in Workers’ Compensation 2025” on June 12. Designed specifically by and for the experienced workers’ compensation practitioner, this webcast highlights select challenges in workers’ compensation practice and offers techniques for managing them. Developments, practices, strategies, and preferences are discussed by your colleagues, your opponents, and judges to help you avoid making mistakes that could negatively affect your client’s claim. Delve into best practices for overcoming obstacles during case preparation and presentation. Mike is presenting as part of a panel (another attorney and a judge) on “Surveillance and Using Social Media to Win Your Case.” More info is here.

RESULTS*

Michael McMaster (Philadelphia, PA):

  • Successfully defended a Claim Petition involving a claimant installing a large garage door in a warehouse when the door fell and struck his leg, later requiring an amputation. The claimant alleged both physical and severe psychological injuries. The claimant was the 100% owner of the company, and when he purchased workers’ compensation insurance, he signed an acknowledgement that as the owner he would not be considered an “employee” under the Act. At the first hearing, Mike moved to bifurcate the matter for a decision on whether the claimant was covered under the Act. The workers’ compensation judge granted this motion. At the next hearing, Mike argued that the claimant was not an employee under the Act and, therefore, not entitled to receive any benefits. Mike submitted both the original application for insurance, where the claimant signed the acknowledgement, and a copy of the policy that was effective at the time of the injury, which included a form stating that the claimant had previously agreed to not be considered an employee. 

Tony Natale (King of Prussia, PA):

  • Successfully prosecuted a Petition to Suspend on behalf of a Berks County mushroom growing facility and successfully suspended the claimant’s indemnity benefits for abandoning available employment. The claimant sustained a fall from a height, injuring a disc in her spine. The employer secured medical evidence releasing the claimant to return to restricted duty work. A job offer was issued. The claimant returned to work earning her pre-injury wages. The claimant alleged that, even though the job was light duty in nature, her back pain was so crippling while working that, “I could not even walk.” The claimant treated at a local hospital and ultimately abandoned the job. Tony submitted the hospital records into evidence, which revealed “no back pain” and “no trouble ambulating.” 
  • Successfully defended a national interstate trucking company before the Workers’ Compensation Appeal Board. The claimant sustained a head injury with post-concussive syndrome during a collision brought on by the claimant’s epileptic seizure. The claimant was disqualified from ever returning to work as a truck driver based on his non-work-related epilepsy condition. He continued to allege symptoms of post-concussive syndrome and maintained his right to continue to collect workers’ compensation benefits. In the underlying action, Tony presented evidence (including the claimant’s own treating neuropsychologist) which the court found to prove full recovery from all injuries. The claimant appealed to the Board, alleging the workers’ compensation judge disregarded substantial evidence in support of ongoing disability. Tony made a two-pronged argument, citing to the fact that the claimant’s appeal did not conform to statutory requirements and the evidence of record demonstrated that the claimant’s work injury resolved and the driving force behind the appeal was to keep the claimant collecting benefits since he could not work due to a non-work-related condition. 

Andrea Rock (Philadelphia, PA):

  • Defeated a Fatal Claim Petition for death benefits for a mother, brother and son. The decedent was found dead in the cab of his truck from diabetic ketoacidosis. The workers’ compensation judge found our evidence supported that the employee did not suffer a work-related fatality. 
  • Defeated the claimant’s appeal before the Appeal Board. The Board affirmed the workers’ compensation judge’s decision, which found the Claim Petition was appropriately dismissed as the claimant was an independent contractor. The Board found that the judge issued the appropriate credibility findings as to the witnesses, which fully supported the Decision.

Francis Wickersham (King of Prussia, PA):

  • Successfully defended two Claim Petitions for two separate injuries. The claimant worked as a delivery driver for the employer and alleged suffering a concussion and injuries to his right shoulder on October 31, 2021, and November 2, 2022, from tripping and falling at locations where he was making deliveries. The employer accepted his November 2, 2022, work injury, but only as to his left elbow. The claimant returned to his regular work after the November 2nd injury and continued working until January 2023, when he took a severance from the employer. He then filed Claim Petitions for the two injuries. During litigation, Frank forced the claimant’s expert orthopedic surgeon and neurologist to admit that no concussion or right shoulder injuries were suffered in either incident by confronting them with Emergency Room records, which showed no such injuries were reported by the claimant. Based on these experts’ admissions, the workers’ compensation judge found their testimonies to be not credible and dismissed the Claim Petitions. The judge also granted a Termination Petition Frank filed as to the November 2, 2022, injury. 

A. Judd Woytek (King of Prussia, PA):

  • Successfully prosecuted a Termination Petition in a case where the claimant cut her thumb in a blender while working for the employer. In granting the employer’s Termination Petition, the workers’ compensation judge credited the opinions of our medical expert that the injury was nothing more than a simple laceration with no nerve or tendon damage. The judge awarded a small closed period of benefits and then terminated benefits completely as of the date of our IME. The judge also found that physical therapy treatment beyond the date of the IME was not reasonable, necessary or related.

*Prior Results Do Not Guarantee a Similar Outcome 

Firm Highlights

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

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News

Marshall Dennehey Announces 2027 New Jersey Super Lawyers And Rising Stars

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Result

Summary Judgment Obtained in Insurance Coverage Case

Thought Leadership

Florida Supreme Court Rules Florida Statute §627.70152 Does not Apply Retroactively

In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

News

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.

Thought Leadership

WCJ Improperly Refused to Conduct C&R Hearing and Erroneously Required Settlement of All Pending Petitions

In this case, the claimant sustained injuries in the course and scope of her employment as a registered nurse. The employer acknowledged the injury by a Notice of Compensation Payable (NCP).  Subsequently, a Workers’ Compensation Judge (WCJ) expanded the description of injury. The employer then filed a Termination Petition, alleging the claimant was fully recovered from the injuries. Providers filed Utilization Review (UR) Petitions, challenging UR determinations finding their chiropractic treatment to be not reasonable and necessary. A settlement of the claim was eventually reached, and the employer filed a Petition to Seek Approval of a Compromise and Release (C&R) Agreement. The C&R outlined that the agreement fully resolved all future workers’ compensation claims except for the termination and UR Petitions. Briefs were filed and one day later, the WCJ issued an Interlocutory Order which stated if instructions were not followed regarding filing of a C&R, a settlement hearing date would not be given. The employer complied with the order, and filed the C&R. Subsequently, the WCJ notified the parties that the C&R must resolve all issues in the petitions, or would not be entertained. A settlement hearing was never held, and the WCJ then issued a decision, granting the Termination Petition and dismissing the UR Petitions. The WCJ also said that the Petition for Approval of a C&R was dismissed without prejudice, as the issues in the Termination and UR Petitions went to a decision. The claimant appealed to the Workers’ Compensation Appeal Board (Board). The Board granted the claimant’s appeal, finding that the WCJ violated the requirement of Section 449 that an expedited hearing be held when a Petition for Approval of a C&R is filed.  The Board further held that it was legally incorrect for the WCJ to insist that the C&R resolve all issues raised by the pending Petitions. The Board remanded the case to a new WCJ, and Employer appealed to the Commonwealth Court. The court affirmed the Board and held that the WCJ erred, as a matter of law, by refusing to hold an expedited hearing within 30 days, once the Petition for Approval of a C&R was filed.  The court noted that the language of Section 449(b) is mandatory, and a settlement hearing is not discretionary or dependent on a party’s separate request for a stay, or whether the record has been closed. The court further rejected Employer’s argument that the case should not be remanded to a new WCJ for a new decision on the termination and and UR Petitions, as the Board passed no judgment on whether the C&R Agreement resolved the termination and UR Petitions, and left it for the WCJ to decide in connection with the Petition for Approval of a C&R.

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

Event

CLM 2026 Focus Conference

Allison joins three insurance industry leaders to discuss how cyber coverage disputes, the growing impact of social inflation on bodily injury claim valuation, and the use of artificial intelligence are reshaping the bad faith landscape. The panel will examine emerging sources of extra-contractual exposure, including evolving cyber insurance coverage issues and the challenges of accurately valuing bodily injury claims. Practical approaches to claim evaluation using AI, along with defense strategies designed to help prevent or successfully defend against bad faith litigation, will also be addressed.