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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. 1, January 2025

January 1, 2025

NEWS

Congratulations to Kiara Hartwell (Mount Laurel, NJ), who was elected a shareholder of the firm effective January 1, 2025. A member of the Workers’ Compensation Department since 2016, Kiara devotes her practice to defending employers, insurance carriers and self-insureds in workers’ compensation matters. She authors the New Jersey updates for our What’s Hot monthly workers’ compensation newsletter and frequently writes for external publications. Admitted to practice in New Jersey and Pennsylvania, Kiara is a graduate of New York University and Rutgers University School of Law.

Heather Byrer Carbone (Jacksonville, FL) was recently honored with the John J. Schickel Professionalism and Excellence Award by the E. Robert Williams Inn of Court. Well deserved!

On February 12, 2025, Michele Punturi (Philadelphia, PA) will join a panel at CLM 2025 Focus Conference: Work Comp, Casualty and Risk Management in Lake Buena Vista, FL. In “Workers’ Comp Risk Management Best Practices: Insights from High-Risk Industries,” the panel will address the ongoing challenges of workers’ compensation in high-risk industries. The presenters will share customized risk management strategies, from talent acquisition and safety program development to effective injury management for smooth employee reintegration. For more information, visit https://lm.theclm.org/event/showeventdescription/29195. 
 

 

RESULTS*

Benjamin Durstein (Wilmington, DE) received a favorable decision from the Industrial Accident Board. The Board accepted the testimony of the employer’s medical expert, which acknowledged lumbar spine and cervical spine injuries related to a work accident, although they fully resolved and the claimant returned to his preexisting baseline condition. 

Tony Natale (King of Prussia, PA) reports five recent successful outcomes for our clients. In the first case, Tony successfully defended a Berks County mushroom farm from a claimant’s appeal challenging a full recovery termination award issued by the underlying court, as well as a dismissal of a penalty request/review challenging the nature of the adjudicated injury. The claimant alleged on appeal that the underlying decision of the court was predicated upon “hired-gun” experts and the court should have “nullified” this evidence. Interestingly, as pointed out in the litigation, the claimant was the only party that relied on a “treating expert,” who was hired by the claimant attorney’s to become the “treating physician” in the case. The Appeal Board systematically rejected the claimant’s “appeal to hypocrisy,” and the underlying court decision was affirmed in entirety.

Tony also successfully defended a Pennsylvania medical equipment manufacturing company in the litigation of claim and penalty petitions. The Claim Petition involved an alleged shoulder injury with a judgment on the pleadings due to a late answer. Tony forced the claimant to admit on cross examination that he left work due to reasons other than the alleged shoulder injury. Tony also forced claimant’s medical expert to admit that the claimant was actively treating for a pre-existing shoulder condition which he withheld from the court and the defense expert. The court found the claimant and his expert not to be credible and dismissed all petitions in their entirety, resulting in a complete defense verdict.

Tony received a full defense verdict on behalf of a Pennsylvania medical equipment manufacturing company in the litigation of a claim petition involving an alleged ankle and Achilles Tendon injury. The claimant alleged, while “stepping backwards” at his work station, he felt immediate pain. Tony cross examined the claimant’s medical expert and established that this expert did not treat the claimant for his ankle or Achilles Tendon, was unaware the claimant had a prior ankle fracture with surgery, and admitted the current surgery and disability were the result of a degenerative condition arising out of the prior, unrelated ankle fracture. 

Tony also successfully defended a Montgomery County police department in the litigation of a Claim Petition. The claimant, a police officer, attended an out-of-state extended-stay educational conference. One evening after the conference activities ended, the claimant attended a “booze cruise” where she was imbibing with conference attendees, and she continued to socialize and party back at the hotel. Later that night, she entered her hotel suite (which was shared with another female officer), shining her flashlight in order to change clothes. While changing, her roommate became perturbed over the ruckus. An argument between the two officers ignited and soon thereafter full-fledged fisticuffs. The claimant alleged physical injuries, post-concussive syndrome, mental injuries and total disability. Tony cross examined the claimant and developed an evidence supporting she was not in the course and scope of employment at the time of injury. Tony also presented medical witnesses to support that the claimant did not suffer from post-concussive syndrome or any disabling physical or mental injuries. 

In a workers’ compensation case of first impression in Pennsylvania, Tony successfully defended a Berks County mushroom canning facility from a Claim Petition alleging repetitive trauma injuries to the upper extremities. The claimant worked as a machine operator and alleged that over time his duties caused nerve injuries to both upper extremities. Tony presented medical expert testimony which supported the existence of these nerve damage conditions in the upper extremities but challenged causation. In a modified Frye challenge to the claimant’s medical expert opinions, Tony argued through expert testimony that the state of science and medicine overwhelmingly supports the fact that “repetitive trauma” is not a substantial contributing factor to the development of carpal tunnel and cubital tunnel syndromes. While the court allowed the claimant to present expert testimony to the contrary, it ultimately found Tony’s expert testimony opinions to outweigh the claimant’s experts’ testimony. The court concluded for the first time in Pennsylvania that carpal tunnel syndrome and cubital tunnel syndrome is not borne out through alleged repetitive trauma. 

Andrea Rock (Philadelphia, PA) received a favorable decision where the judge terminated the claimant’s wage loss and medical benefits and denied claimant’s Review Petition to expand the nature of injury based on the opinion of the independent medical examiner. The claimant’s Petition to Review alleged the work injury included cervical radiculopathy, requiring surgical intervention, as well as disfigurement. After reviewing deposition testimony from the claimant, her treating physician and the independent medical evaluator, the judge was specifically persuaded that the claimant did not sustain a cervical spine injury; thus, the surgery was not related as her complaints to her neck did not begin until nearly a week after the original fall. Thus, the claimant’s medical and indemnity benefits were terminated and the review petition was dismissed in its entirety. 

Robert Schenk (Philadelphia, PA) successfully had the claimant’s Claim Petition denied by the judge, and in doing so, the judge found the claimant’s testimony as not credible. Robert established the claimant did not report a work-related injury until after she had been advised light-duty work was only available for employees injured on the job, along with surveillance evidence showing the claimant returning and working on the date of injury with no apparent injury. The claimant’s testimony about prior injuries was also in conflict with contemporaneous hospital records and those medical records showed the claimant had prior low back problems, with no new trauma being reported to the emergency room on the date of injury. 

In another matter, the judge granted Robert’s Petition to Review Medical Treatment. This would have been a termination petition, but the employer’s medical expert found the claimant fully recovered from only two of the three injuries. The judge found the testimony of the employer’s medical expert credible and granted the petition.

In a final case, Robert defended a Claim Petition where the judge awarded wage loss benefits for only three months and then terminated benefits based on the medical opinion of the employer’s medical expert.

A. Judd Woytek (King of Prussia, PA) received three favorable decisions recently. In the first case, Judd successfully defended a Claim Petition that alleged a hip and low back injury. Judd presented video evident showing the claimant limping when he arrived at work the day of the alleged injury. The workers’ compensation judge credited the video and the opinions of our medical expert in denying and dismissing the Claim Petition. 

In a second case, Judd successfully prosecuted a termination petition, arguing a full recovery from a left hand and low back injury. The workers’ compensation judge credited the opinions of our medical expert, that the claimant had fully recovered from his injuries. 

Finally, Judd successfully obtained orders in two separate cases directing the claimants to appear for IMEs as they had no valid excuse for their failure to appear for the IMEs the first time.

*Prior Results Do Not Guarantee a Similar Outcome 


 

What’s Hot in Workers’ Comp, Vol. 29, No. 1, January 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. 

News

Marshall Dennehey’s John J. Hare Brings Home Attorney of the Year Honors; Firm Named Litigation Department of the Year in Two Categories

Marshall Dennehey took home top honors in three categories at the The Legal Intelligencer’s 2026 Pennsylvania Legal Awards, held June 11 in Philadelphia. The first place awards include: Attorney of the Year: John J. Hare, Chair of the firm’s Appellate Advocacy & Post-Trial Practice Group and Executive Committee member, together with Charles “Chip” Becker of Kline & Specter Litigation Department of the Year, Appellate – Third Win in a Row! Litigation Department of the Year, Product Liability/Mass Torts “There is no one more deserving of Attorney of the Year honors than John. This award is a testament to his exceptional skill, dedication, and leadership—qualities that truly exemplify the very best of our firm,” said G. Mark Thompson, Marshall Dennehey’s President & CEO. “These honors also reflect the strength and depth of our product liability, mass torts, and appellate practices across Pennsylvania and beyond, underscoring our ongoing commitment to delivering outstanding results for our clients.” Attorney of the Year – John J. Hare, Marshall Dennehey, together with Charles “Chip” Becker, Kline & Specter Over the past year, John and Charles were opposing counsel in many of the highest-profile civil appeals in Pennsylvania. John is renowned as a preeminent appellate lawyer on the defense side, and Chip on the plaintiff's side. They have opposed each other repeatedly, exhibiting peerless professionalism and exceptional civility, while zealously litigating under the unremitting pressure of high-profile litigation and record-setting verdicts totaling more than $3.5 billion. They have also collaborated, outside of litigation, on many commissions, committees, and projects of importance to the Pennsylvania judiciary and legal community. Litigation Department of the Year – Appellate Law, Winner (previous winner, 2025 and 2024) 2025 was another standout year for the firm’s Appellate Advocacy & Post‑Trial Practice Group, led by John J. Hare, which was retained to challenge many of Pennsylvania’s “nuclear” verdicts—awards exceeding $10 million. Notably, the department persuaded the Pennsylvania Superior Court to reverse a Philadelphia judgment of $1.09 billion, the largest judgment ever overturned by a Pennsylvania appellate court. The group’s 11 full‑time Pennsylvania‑based appellate lawyers are at the center of Pennsylvania’s most high-profile matters, bringing more than 150 years of combined appellate experience. They routinely handle post‑trial and appellate matters and are frequently engaged to participate in and monitor trials in high‑exposure cases to ensure that critical legal issues are properly raised and preserved for appeal. Litigation Department of the Year – Product Liability/Mass Torts, Winner This marks the first win for the firm’s Pennsylvania Product Liability and Mass Torts practices, which operate within our Casualty Department, managed by Matthew Schorr and Jeff Rapattoni. For almost five decades, Fortune 500 product manufacturers/distributors and their insurers have turned to these groups to defend their litigation. Led by Bradley D. Remick and Vlada Tasich, our Product Liability group’s success can be attributed to its commitment to keeping abreast of ever-changing legal theories, judicial viewpoints, and evolving technology impacting the product liability landscape. Our attorneys have successfully handled thousands of product liability matters in all jurisdictions across the state. Likewise, our mass tort litigation practice – divided into Asbestos & Mass Tort, and Environmental & Toxic Tort Litigation –  has defended manufacturers, distributors, contractors, and premises owners in thousands of personal injury and other claims. Led by Kevin E. Hexstall and Patrick T. Reilly, most attorneys in these groups have more than 20 years of experience, and our seasoned trial team has tried hundreds of cases to verdict, consistently achieving strong results through both trials and settlements. In addition to these awards, Marshall Dennehey was a Litigation Department of the Year finalist for Professional Liability.

Thought Leadership

Pennsylvania Supreme Court Holds Self-Referral Prohibition Does Not Cover Prescriptions Written by Physicians with Ownership Interests in Dispensing Pharmacies

700 Pharmacy v. Bureau of Workers’ Compensation Fee Review Hearing Office (State Workers’ Insurance Fund); Nos. 97, 98, 99, 100, 101 MAP 2024; decided June 16, 2026; by Justice Mundy.   In this case, Drs. Miteswar Purewal and Shailen Jalali, treating physicians for workers’ compensation claimants, wrote prescriptions for various medications that were filled by 700 Pharmacy. The worker’s compensation insurer refused to pay for the prescriptions on the basis that they were illegal self-referrals under the Act. 700 Pharmacy subsequently filed fee review applications with The Bureau of Workers’ Compensation Medical Fee Review Office. At a fee review hearing, both physicians stipulated they had a financial interest in the pharmacy.  The physicians argued that the Anti-Referral Provision of the Act does not bar self-referrals on prescription drugs and pharmaceutical services, since the provision does not specifically identify prescription drugs. The Fee Review Hearing Officer rejected this argument and found that prescriptions for medications are prohibited under the “goods or services” language included in the provision. 700 Pharmacy appealed to the Commonwealth Court, and the court affirmed, agreeing with the Hearing Officer’s interpretation of “goods and services” as encompassing prescriptions. 700 Pharmacy appealed to the Supreme Court.  The Supreme Court reversed the decisions of the Hearing Officer and the Commonwealth Court, holding that the term “goods and services” in the Anti-Referral Provision of the Act did not include prescriptions. According to the Court, “goods and services” was not a catch-all, but simply explanatory as to the eight enumerated categories in the provision. The provision (Section 306(f.1)(3)(iii)) reads, in pertinent part: Notwithstanding any other provision of law, it is unlawful for a provider to refer a person for laboratory, physical therapy, rehabilitation, chiropractic, radiation oncology, psychometric, home infusion therapy  or diagnostic imaging, goods or services pursuant to this section if the provider has a financial interest with the person or in the entity that receives the referral. The Court said that if the General Assembly wanted to specifically include prescription drugs and pharmaceutical services in the Anti-Referral Provision, they would have done so. They pointed out that prescription drugs and pharmaceutical services were included by the legislature in Section 306 (f.1)(3)(vi) of the Act as to reimbursement, and claimed that their omission from the Anti-Referral Provision supports the conclusion that those services are not included in the Anti-Referral Provision’s self-referral prohibition.

Thought Leadership

Unanimous New Jersey Supreme Court Holds That Personal Emails of Public Employees and Officials are Subject to OPRA

In Rosetti v. Ramapo-Indian Hills Regional High School Board of Education, the New Jersey Supreme Court unanimously held that government-related emails, which are contained within personal email accounts, are government records under the Open Public Records Act (OPRA), and a log of those emails must be produced when requested. In reaching this decision, the court conducted an analysis of the OPRA and cited previous cases that held that emails do in fact fall within OPRA’s definition of a record and must be produced when requested pursuant to the Act. The court in Rosetti then had to answer the question as to whether public officials’ personal email accounts that are used for government purposes are subject to OPRA, and found that they are. Rosetti made an OPRA request to the Board of Education seeking email logs from Board members’ personal email accounts. The Board refused to produce the logs and indicated that it was not under any obligation to produce personal email account logs, only from government-related email accounts. The issue was whether a log had to be produced for Board members’ personal email accounts, which they used to conduct Board business. The Board argued that while it was possible to create a log for government-related email accounts through its IT Department, it was not possible to do so for personal email accounts. The court rejected this argument and ruled that Board members are required to search their personal email accounts and create a log of government-related emails housed in those accounts. Once completed, each Board member then must submit a certification detailing the searches that were conducted. The court went one step further with a suggestion to government employees and officials, stating, “[g]overnment agencies should strongly advise their employees, elected officials, and others engaged in government-related business to refrain from using their personal email accounts when conducting government-related business.”  Please do not hesitate to contact me with any questions regarding this case and others pertaining to the OPRA. 

Thought Leadership

Coverage Determined, Judgment Paid, Bad Faith Survives: Fourth DCA’s Opinion Highlights the Distinction Between Contractual and Extra-Contractual Damages

In Healthy Food Experts, LLC v. Amguard Ins. Co., No. 4D2025-0181 (4th DCA June 10, 2026), the Fourth District Court of Appeal explained that an insurer’s payment of a judgment in a breach of contract case does not automatically eliminate a later bad faith claim seeking extra-contractual damages. The decision provides guidance on when a first-party bad faith claim may still proceed after a coverage dispute has already been resolved by a judgment. Healthy Food Experts, LLC involved a dispute related to a property damage claim submitted under a commercial insurance policy issued by the insurer following a ceiling collapse at the insured’s restaurant. The insurer denied coverage for the insured’s losses for business personal property and business income, but extended coverage for the food spoilage losses. As a result, the insured filed a breach of contract action and ultimately obtained a jury verdict. The insurer appealed the verdict and, while the appeal was pending, the insured filed a Civil Remedy Notice (CRN) seeking payment for the judgment plus interest. The insurer failed to cure the CRN within the statutory sixty-day cure period, but paid the judgement in full with accrued interest following the appeals court’s per curiam affirmance. Nevertheless, the insured filed a first party bad faith lawsuit claiming to have suffered extra-contractual damages. In response to the bad faith suit, the insurer filed a Motion to Dismiss for failure to state a cause of action, relying on Fridman v. Safeco Insurance Co. of Illinois, 185 So. 3d 1214 (Fla. 2016) stating that damages were fixed by judgment of the breach of contract suit and the insured could not recover additional damages beyond those already awarded. The insurer also argued that the judgment did not exceed the insured’s policy limits, which was a required element of a first party bad faith claim. The trial court dismissed the bad faith action based on Fridman, concluding the insured could not seek any additional damages.  The insured appealed the court’s ruling to the Fourth DCA arguing the trial court’s order conflicts with Florida law and misapplies Fridman, as a contractual damage determination in the underlying suit establishes the “condition precedent to prosecute a first party bad faith action.” Cingari v. First Protective Ins. Co., 377 So. 3d 1169, 1174 (Fla. 4th DCA 2024). Further, the insured argued that the only purpose to the binding language in Fridman is to prevent the re-litigating of the same damages, which in this case are the contractual damages. The insured asserted the damages were not the “same” as they were seeking consequential damages from the insurer’s alleged bad faith. The Fourth District emphasized in its ruling that a first party bad faith claim is not ripe for litigation until there has been the following: a determination of the insurer’s liability for coverage; a determination of the extent of the insured’s contractual damages, and the required civil remedy notice is filed pursuant to §624.155(3)(a).  Demase v. State Farm Fla. Ins. Co., 239 So. 3d 218, 221 (Fla. 5th DCA 2018) The court concluded that the necessary conditions were satisfied as the jury verdict determined both coverage and the extent of the insured’s contractual damages, and the insured properly filed a civil remedy notice, so the bad faith claim was ripe for litigation. The Fourth DCA further explained the insured could not seek contractual damages in its bad faith action, which was previously litigated in its breach of contract suit. However, the court determined the insured could seek “extra-contractual damages,” which were not recoverable in the insured’s breach of contract suit, which may include interest, court cost, and reasonable attorney’s fees incurred by the insured. Further, the court held excess judgment is not essential in a first party bad faith claim and the insurer’s late payment of the judgment did not preclude the insured’s bad faith action. As a result, the Fourth District Court of Appeals reversed the trial court’s final dismissal order of the bad faith action. This opinion highlights the distinction between contractual and extra-contractual damages. Moreover, this case demonstrates that a judgment does not necessarily end the dispute in a first party property claim as it is could also serve as a prerequisite of a bad faith action. The decision serves as a reminder that insurers may face bad faith exposure notwithstanding the payment of a judgment in an underlying breach of contract action.