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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. 28, No. 12, December 2024

December 1, 2024

NEWS

Heather Byrer Carbone (Jacksonville, FL) has been recognized as 2024 Florida Trend “Legal Elite NOTABLE - Women Leaders in Law.” Heather is honored for her impact in the field of law, mentorship, and leadership in professional organizations and civic/community service initiatives. Read the news release here.

On November 20, Tony Natale (King of Prussia, PA) was one of the key speakers at the annual Delaware Valley Workers’ Compensation Trust’s (DVWCT) Claim Prevention seminar. This live event was attended by Risk Control employees, managers, police chiefs, and command staff as well as department heads and local government leadership in the townships and municipalities that are administered by the DVWCT. Tony spoke on the importance of presenting unified and global defenses between workers’ compensation, unemployment compensation, internal grievance arbitration and employment law where applicable in cases involving workplace injuries. Tony was able to give examples of this unified directive, citing a current case in litigation involving all of these areas of law and the blue print used to provide a global defense.

On November 15, The Legal Intelligencer published “Goodbye ‘Yellow Freight’ Road?,” by Judd Woytek (King of Prussia, PA). You can read Judd’s article here.
 

RESULTS*

Michael Duffy (King of Prussia, PA) successfully defended against two review petitions where the claimant sought to expand the description of injury from a right shoulder injury to include cervical and lumbar disc herniations, radiculopathy and various psychiatric injuries. The claimant also sought to increase his average weekly wage to a significantly higher expectation rate. The workers’ compensation judge limited the injuries to the right shoulder and rejected the claimant’s expectation rate argument.

Tony Natale (King of Prussia, PA) successfully had a penalty petition, filed against a local university, dismissed on all counts. The claimant sustained an injury to his low back which was accepted as compensable. The claimant returned to work at a modified job, and his benefits were made the subject of a notice of suspension. The claimant worked for several months and never challenged the suspension notice. Thereafter, the claimant left work when his attorney referred him to a new treating doctor. The carrier made some changes to claim data within the WCAIS system (correcting the claimant’s address). As a result of a glitch in the WCAIS system, a new Notice of Compensation Payable was issued based on this data change. The claimant filed a penalty petition, arguing his benefits must be reinstated based on the issuance of the new Bureau document. Tony presented evidence by way of factual testimony and documentary evidence to demonstrate the fallibility of the WCAIS system and exposed the illogical argument made by the claimant’s attorney to the contrary. The court dismissed the penalty in its entirety.

Tony Natale also successfully defended an giant fashion distribution center in the litigation of a Claim Petition. The claimant filed a work injury claim against the fashion center. The matter was assigned to a workers’ compensation judge, and the employer/carrier failed to file a timely answer, relegating all “well pleaded facts” as an admission against interest. As it turned out, the named employer did not have an employer/employee relationship with the claimant, but the late answer acted as an admission of such a relationship based on the pleadings within the claim. Tony was then referred the case to try to mitigate exposure in light of this negative turn of events. Based purely on oral argument detailing the constitutionally offensive result that would be achieved by the interpretation of the case law surrounding late answers, the court dismissed the Claim Petition in its entirety.

Tony Natale also successfully prosecuted a termination petition on behalf of Pennsylvania cabinetry company. The matter originally began as a settlement of a prior 2009 work injury claim. At the settlement hearing, the claimant chose to forego the settlement after learning through Tony’s cross examination of the potential Medicare issues involved in the claim. The employer/insurer moved forward with a new independent medical exam with a renowned orthopedic surgeon. A termination petition was filed, alleging full and complete recovery from the work-related injury, and the court adopted the defense medical opinions as fact. As a result, all benefits were terminated. 

Rachel Ramsay-Lowe (Roseland, NJ) successfully completed a trial on the issue of whether the claimant had a cognitive disorder and whether the carrier should authorized medical treatment for a spinal cord stimulator. After taking testimony of both doctors, the courts agreed with Rachel’s argument that the claimant’s doctor’s report lacked objective medical findings to reach the diagnosis of cognitive disorder and dismissed this from the overall claim. The claimant also requested a hearing to address the carrier’s denial of a spinal cord stimulator. Rachel made the argument the claimant’s injuries are merely a strain/strain of the lumbar spine and that the claimant failed to meet the medical treatment guidelines, which require the claimant receive a psych evaluation to determine if they are a good candidate for the stimulator. In addition, Rachel successfully argued the treatment currently rendered does not show a failed back surgery or a special circumstance where a stimulator should be granted. The court agreed with Rachel’s argument and found the carrier does not have to provide a spinal court stimulator.

Michael Sebastian (Scranton, PA) successfully defended a Claim Petition, which alleged the claimant suffered a work-related cervical injury on June 29, 2023. The claimant testified that he felt a snap in his back, but did not feel the pain right away, and continued to work until July 17, 2024. He then went to the emergency room and subsequently had surgery on July 20, 2023. During cross-examination, the claimant agreed he only suffered a cervical injury, not a low back injury. He further noted he had a prior low back injury on October 19, 2022, for which he filled out an accident report and was sent to a doctor and received treatment. However, the claimant first reported the June 29, 2023, injury on September 1, 2023, and at that time could not recall a specific event that occurred on June 29, 2023. However, he did confirm he heard a snap in his back when the injury did occur. The claimant also agreed he worked full duty, without reporting the incident, until July 17, 2024.

Dr. Martinez, the claimant’s expert, testified the claimant was a partial quadriplegic in the upper and lower extremities. Dr. Martinez opined the claimant had cervical stenosis with myelopathy and, given his underlying condition, was probably going to have surgery at some point in the future but it was aggravated by the constant use of his neck. 

Dr. Henderson, the defense expert, found no evidence of a work-related injury on June 29, 2023, and that the claimant’s symptoms are consistent with cervical stenosis with myelopathy, which is a degenerative condition. Dr. Henderson opined the claimant’s surgery was for a pre-existing condition and the current treatment is unrelated to any alleged work injury. Dr. Henderson reviewed the MRI from from July 17, 2023, noting there were no acute findings. He also reviewed Dr. Martinez’s testimony, noting the claimant did not have disc herniations and that the surgery was not for disc herniations, but for disc issues in the cervical spine that were degenerative in nature. 

The workers’ compensation judge found the claimant to be not credible to the extent he testified he suffered a work-related injury on June 29, 2023, or any disability related to it. He noted the claimant’s demeanor during the hearing was not credible and that his testimony was called into question based upon the employer’s policy that you must immediately report injuries, as he had in the past. The judge also noted the claimant’s description of the work injury, i.e., a snap in his back, conflicted with documentation and the contemporaneous medical records. He also noted that prior similar complaints made on June 26, 2023, and failed to mention a work-related injury in the July 17, 2023, medical notes. The judge noted that subsequent treatment notes also indicate the injury or condition pre-dated the June 29, 2023, work injury date. 

The judge accepted the testimony of Dr. Henderson over Dr. Martinez, noting that Dr. Martinez did not review the cervical MRI films or reports and did not have the medical records immediately pre-dating the work injury, including Dr. Tayoun’s records. The judge found that Dr. Henderson’s history, opinions and testimony were corroborated by the medical records. Further, the judge emphasized that Dr. Martinez, during cross examination, offered inconsistent and illogical explanations that the claimant’s lumbar complaints and lower extremity findings were related to the lumbar condition prior to the work injury, but after that date they were related to the cervical condition. 

Kacey Wiedt (Harrisburg, PA) secured a decision denying the claimant’s Claim and Penalty Petitions. The claimant, a mechanic, alleged he sustained a right ankle fracture, right ankle abscess, and avulsion fracture of the lateral talus as a result of falling off the back of a pickup truck while removing a truck-cap at work. The claimant asserted he was on the clock and on the employer’s premises when the fall occurred. He claimed he was assisting his employer’s friend in removing his truck-cap from his pickup truck. Through employer witness testimony, Kacey was able to show that the claimant was not in the course and scope of employment when he injured his ankle. Kacey proved the claimant assisted the individual with removing the truck-cap for a purely personal reason and not at the direction of his employer. Kacey also showed that the injury occurred shortly after the claimant’s work shift ended and he had clocked out for the day. 

*Prior Results Do Not Guarantee a Similar Outcome 


 

What’s Hot in Workers’ Comp, Vol. 28, No. 12, December 2024 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 © 2023 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

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.

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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

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Result

Summary Judgment Obtained in Insurance Coverage Case

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. 

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.

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Complete Victory Obtained in a Workers’ Compensation Matter

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Complete Victory Obtained in a Workers’ Compensation Matter