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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. 4, April 2025

April 1, 2025

NEWS

Marshall Dennehey Announces 2025 New Jersey Super Lawyers Rising Stars

We are pleased to announce that Kiara Hartwell and Adam Huber (both of Mount Laurel, NJ) have been selected to the 2025 edition of New Jersey Super Lawyers magazine. A Thomson Reuters business, Super Lawyers is a rating service of lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. Each year, no more than five percent of the lawyers in the state are selected as Super Lawyers and no more than 2.5 percent are selected for Super Lawyer Rising Stars. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations. A description of the selection methodology can be found at http://www.superlawyers.com/about/selection_process.html. No aspect of this advertisement has been approved by the Supreme Court of New Jersey. 

 

RESULTS*

Michael Duffy (King of Prussia, PA):

  • The Worker’s Compensation Judge granted the Review and Termination Petitions and denied the claimant’s Review Petition. The claimant fell approximately 20 feet from a ladder while climbing off a roof. He landed on his feet and sustained bilateral calcaneal fractures. The employer issued a Notice of Compensation Payable accepting bilateral ankle fractures. In his Termination Petition, Michael alleged a full recovery and filed the Review Petition to amend the description of injury to bilateral calcaneal fractures instead of bilateral ankle fractures. The claimant, too, filed a Review Petition to amend the description of injury to include traumatic neuropathic pain secondary to bilateral calcaneal fractures, lumbar spine strain, lumbar spine disc injury and bilateral lumbar radiculopathy. The workers’ compensation judge found the defense expert more credible than the claimant’s expert. 

Benjamin Durstein (Wilmington, DE):

  • The Industrial Accident Board rejected the claimant’s allegation that she sustained a 40% permanent impairment to the left arm caused by complex regional pain syndrome. The claimant’s expert used the 5th Edition of the AMA Guides to the Evaluation of Permanent Impairment to arrive at 40%. Instead, the Board accepted the testimony of the employer’s medical expert, who relied upon the 6th Edition of the AMA Guides. The Board concluded that the appropriate rating was 13% to the left upper extremity.

Tony Natale (King of Prussia, PA):

  • Successfully prosecuted a Termination Petition involving a claimant who tripped at work and sustained an injury to the knee. The claimant’s body habitus was one of morbid obesity prior to the injury. Expert medical evidence was presented demonstrating the work injury was limited to a contusion and that the significant degeneration in the knee was pre-existing and due to wear and tear related to morbid obesity. The court found the expert’s opinion of full recovery to be credible and limited the injury to a knee contusion which fully resolved, resulting in a complete defense verdict.
  • Successfully defended a Claim Petition involving a claimant who was helping to lift a 400-pound slab when she felt her shoulder “pop.” After vigorous cross examination, the claimant admitted that she provided notice 122 days after the date of injury (which was untimely by the letter of the law). She then asserted that her injury was “repetitive trauma” and argued that each day she worked after the original incident caused a new injury. Cross examination of the claimant’s medical experts dispelled her theory of compensability. The court dismissed the Claim Petition on the bases of a violation of the notice provisions of the Act and on the lack of credibility of the medical experts presented. A complete defense verdict on all counts. 
  • Successfully defended a Claim Petition involving a claimant, who slipped and fell down a flight of concrete stairs and alleged multiple injuries to body parts, from head to toe. The employer’s panel doctor found the work injuries limited to the claimant’s extremities. The claimant was referred by his attorney to a pain specialist who opined significant injuries to multiple body parts. However, claimant’s a expert was forced to admit that he has been practicing medicine for less than two years and only offered opinions about neck and back injuries—nothing else. The claimant alleged serious disc herniation injuries in the neck and back and still pursued other body part injuries in the litigation with no additional expert evidence. The employer presented an orthopedic surgeon who found no injuries on the date of his evaluation and opined that the claimant fully healed from any injuries he may have sustained. The court found only minor strains to the neck and back with a full and complete recovery (and no further benefits due). Allegations of multiple disc herniation injuries were dismissed as unrelated.
  • Successfully prosecuted a Suspension Petition involving a claimant who was released to return to work with restrictions and ultimately to full duty. She failed to return to her pre-injury position upon release to full duty, but she did return to alternate employment. Any wage loss was argued to be unrelated to the work injury since the pre-injury job was open and available. The court granted a suspension of benefits on this basis, resulting in a full defense verdict. 
  • Successfully prosecuted a third level appeal regarding Medicare conditional payments after an auto accident injury. This appeal centered on the federal government’s contractor who continually denied the company’s initial level appeals to limit conditional payment recoupment based on policy exhaustion. The court found the evidence submitted supported the auto policy at issue, the payments made on the basis of the policy and exhaustion of the policy after paying numerous medical bills. The government sought additional conditional payments and after a vociferous oral argument, the court found no additional conditional payments were due. 

Michele Punturi (Philadelphia, PA):

  • Successfully prosecuted a Modification Petition, establishing a significant reduction in dependent benefits as the claimant’s daughter was over 18 and was not enrolled as a full-time student in any accredited educational institution, pursuant to § 307 of the Pennsylvania Workers’ Compensation Act. Based upon documentary evidence and a sound legal argument, the judge granted the decrease in weekly benefits and awarded a 100% credit against future benefits for the employer to recoup the overpayment that occurred beginning in 2023.

Judd Woytek (King of Prussia, PA):

  • The workers’ compensation judge granted Petitions for Review of Utilization Review Determinations, finding the treatment by three of the claimant’s medical providers to be unreasonable and unnecessary. The treatments found unreasonable and unnecessary included electrical stimulation, chiropractic manipulation, PRP injections, Botox injections, pain patches, trigger point injections and office visits. 
  • The judge granted a Petition to Terminate benefits as the judge found the opinions of our medical expert competent and credible and terminated benefits as of the date of the IME. 
  • The workers’ compensation judge granted a Termination Petition and denied the claimant’s Review/Reinstatement Petition. The judge credited the opinions of our medical expert, that the claimant was fully recovered from his accepted low back strain and right shoulder strain and that surgery performed on the claimant’s shoulder was not related to the work injury. He also found the claimant’s own testimony to be inconsistent and not credible.

*Prior Results Do Not Guarantee a Similar Outcome 


 

What’s Hot in Workers’ Comp, Vol. 29, No. 4, April 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

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.

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. 

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage Case

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.

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation 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.

graphic announcing our 6 2027 Super Lawyers & Rising Stars

News

Marshall Dennehey Announces 2027 New Jersey Super Lawyers And Rising Stars

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

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

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group