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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. 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.

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Event

Florida Insurance Fraud Education Committee (FIFEC)

Sean and Alex will present, "Life Care Plans: From Low Impact to Policy Limits," focusing on the history and expanding use of life care plans in litigation and their ability to transform low impact injury claims to disproportionate high value claims. By focusing on the limitations of life care planners, Florida's tort-reform on medical damages, and the Daubert standard, extraordinary life care plans with inflated future medical care recommendations can be defended.

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Thought Leadership

Mitigating Long-Tail Liability: Delaware Court Reaffirms Five-Year Workers’ Compensation Deadline

Williamson v. Donald F. Deaven, Inc., No. N25A-07-004 FWW, 2026 LX 252526 (Del. Super. Ct. June 2, 2026) Claimant was involved in a compensable industrial work accident on May 12, 1995, for a low back injury.  Following this, he received compensation for temporary total disability benefits from July 1996 to September 1996 and for sustaining a permanent impairment in 1997 and 1998. For the next 23 years, the claimant continued treatment and paid his own medical bills without submitting them to the employer’s insurer. In November 2021, the claimant filed a petition seeking payment for medical expenses, including prospective surgery and a resulting period of total disability. The employer moved to dismiss the petition, arguing it was barred by Delaware’s five-year statute of limitations (19 Del. C. § 2361(b)). Pursuant to 18 Del. C. § 3914, insurers must provide prompt written notice of the applicable statute of limitations to invoke the five-year deadline. Due to the age of the case, neither party had a comprehensive file of the claim and the Board had archived its file of the matter. The carrier’s computer system retained only bare information indicating that payments occurred and agreements and receipts were filed with the Board in 1997. While the claimant argued that the employer could not prove it provided the mandatory statutory notice, the Hearing Officer recovered the archived file, which contained two “Receipts for Compensation Paid” signed by the claimant. The receipts explicitly contained the required five-year limitation language, which the claimant testified to signing at the hearing. The claimant also attempted to introduce evidence of payments he claimed the employer made, which would have extended the statute of limitations. As a preliminary matter, the hearing officer excluded the testimony about the payments because the claimant did not produce them to the employer. The Board found in favor of the employer and dismissed the claimant’s petition as time-barred. The claimant appealed the Board’s decision, arguing that he never received adequate notice of the statute of limitations and that the hearing officer’s evidentiary ruling was an abuse of discretion. The Court held that the archived, signed receipts constituted substantial evidence that the insurer fulfilled its statutory notice requirements. Therefore, the claimant’s petition was time-barred under the statute of limitations provisions of 19 Del. C. § 2361(b). Furthermore, the Court reinforced strict procedural compliance: it rejected the claimant’s attempts to introduce evidence of payment on appeal, ruling the argument was waived for failure to preserve it while the matter was still before the Board. This recent ruling by the Court underscores the importance and necessity of robust data preservation and precise compliance with notice requirements. For risk managers, employers, and insurers, the decision highlights how tight administrative execution protects against catastrophic long-tail liability.

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. 

Thought Leadership

New Jersey Expands Family Leave Protections Effective July 17, 2026

On January 17, 2026, Governor Murphy signed into law legislation expanding the New Jersey Family Leave Act (NJFLA). Beginning July 17, 2026, significant amendments to the NJFLA will expand job-protected family leave to smaller businesses and more employees across the state. The new law broadens coverage by lowering the threshold for private employers from 30 employees to 15 employees, meaning many smaller businesses will now be subject to the NJFLA. Employees of state and local government agencies will continue to be covered regardless of the size of the employer. The amendments also make it easier for employees to qualify for leave. Under the revised law, an employee will be eligible after three months of employment and at least 250 hours worked during the preceding 12 months, replacing the previous requirement of 12 months of employment and 1,000 hours worked. Currently, New Jersey's Temporary Disability Insurance (TDI) and Family Leave Insurance (FLI) programs provide eligible employees with wage replacement while they are on leave but do not independently guarantee job protection. The recent amendments to the New Jersey Family Leave Act (NJFLA) expand these protections by extending job-protected leave to additional employees. Under the amended law, employees receiving TDI or FLI benefits may be entitled to return to the same position they held before taking leave, or to an equivalent position with the same seniority, status, pay, and benefits. Although the legislation also states that it does not expand or modify an employee's reinstatement rights under the NJFLA, the amendments appear to provide job protection to eligible employees receiving TDI or FLI benefits without requiring them to separately satisfy the eligibility requirements of the NJFLA or the federal Family and Medical Leave Act (FMLA). As a result, some employees may be entitled to longer periods of job-protected leave than were previously available under existing law. With these amendments, New Jersey continues to strengthen workplace protections by expanding access to job-protected family leave for eligible employees. These changes significantly expand access to job-protected family leave and may require employers to update their leave policies, employee handbooks, and HR practices. Notably, employers who were previously not required to administer NJFLA may need to amend their policies and/or create new protocols to come into compliance with the NJFLA. Failure to do so would prove costly, as the penalties for non-compliance are significant.

Thought Leadership

Congress Passes Financial Exploitation Prevention Act

On June 25, 2026, the House passed the Financial Exploitation Prevention Act of 2025 (“the Act”) by a vote of 414 to 2. The Act allows financial advisors and firms to delay suspicious transactions regarding the accounts of clients who are 65 or older, if they believe financial exploitation has occurred or is about to take place. With the advancement of technology and AI, the House’s overwhelming bipartisan passage of the Financial Exploitation Prevention Act represents an important step in strengthening the financial industry’s ability to combat the growing threat of elder financial exploitation. The Act recognizes what advisors have long known that financial professionals are often the first to detect suspicious behavior but have historically lacked clear legal authority to intervene before irreversible financial harm occurs. From the industry’s perspective, the bill accomplishes several important objectives, including the following: (1) Provides a practical “pause button” by allowing financial professionals to temporarily delay certain transaction requests when there is a reasonable belief that a senior or vulnerable adult is being financially exploited; (2) Empowers financial professionals to act by providing greater certainty that firms can act in good faith to protect clients without unnecessary legal risk; and (3) Strengthens investor protection without sacrificing client rights by allowing temporary delays based on a reasonable suspicion of exploitation, which is intended only to allow additional review and not to deny clients access to their money indefinitely. In sum, the Financial Exploitation Prevention Act will equip financial professionals with practical, carefully tailored tools to stop suspected financial exploitation before client assets are lost. By allowing firms to temporarily delay suspicious transactions under defined circumstances, Congress is recognizing the critical role advisors play as the first line of defense against increasingly sophisticated fraud schemes. The Act strikes an appropriate balance between protecting vulnerable investors and preserving individual financial autonomy, while reinforcing collaboration among advisors, families, and law enforcement to combat financial exploitation. The bill now awaits Senate action.

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.