.

What's Hot in Workers' Comp

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

What’s Hot in Workers’ Comp, Vol. 27, No. 9, September 2023

September 1, 2023

NEWS

Elias Hassinger (Philadelphia, PA) will co-present at the 2023 Philadelphia Bar Association’s Bench-Bar & Annual Conference on September 22, 2023. In “Proper Identification of Pain Generators in Work Injuries/Personal Injuries and Novel Treatment Options,” Eli and the other panelists will explore proper identification of pain generators and novel treatment options and how they may affect the workers' compensation claim.

Michele Punturi (Philadelphia, PA) will co-present “Getting Caught with Your Hand in the Proverbial Cookie Jar” at this year’s ClaimsXchange in Philadelphia. In this presentation, the panel will discuss best strategies for investigating, uncovering, and deterring fraudulent acts while exploring methods to recover monies paid out to fraudulent actors. They will also examine how fraud impacts the claim value and how to counteract its debilitating effects. For more information, visit: https://www.theclaimsx.org/getting-caught-with-your-hand-in-the-proverbial-cookie-jar.  
 


 

RESULTS*

Greg Bartley (Roseland, NJ) successfully defended a case involving the cancellation of a workers’ compensation policy. The case involved a company that had failed to pay their insurance premium on its workers’ compensation policy. The carrier notified the insured company that the premium had not been received and that the carrier was taking the necessary steps to cancel the policy. The carrier complied with rules for policy cancellation pursuant to the New jersey Department of Labor. The case involved a worker who was injured on the day after the policy was cancelled. The company, on the day after the worker’s injury, electronically paid the premium. The day following receipt of the policy premium, the carrier issued a new policy covering the company. When given notice of the claim, the carrier denied it based upon the cancellation of the policy. The petitioner filed a claim petition, alleging that the failure to pay the premium should not deny him coverage, as the payment of the premium and subsequent issuance of the new policy amounted to a mere lapse in coverage and the carrier’s acceptance of the premium should result in the coverage being reinstated as of the date of cancellation, not the date of the new policy. After numerous hearings over more than two years and two judges, who supported the position of the petitioner, Greg argued the case with all parties present. The court agreed that the cancellation was legally effective and, therefore, entered an order of dismissal as to the carrier.

Ben Durstein (Wilmington, DE) was successful in having the Delaware Superior Court affirm the Industrial Accident Board’s decision that the employer correctly paid for ketamine infusion treatments. The Board had found that these treatments were properly paid pursuant to the Delaware Workers’ Compensation Fee Schedule. The court rejected the claimant’s argument that Section 2322(b) of the Workers’ Compensation Act required a higher payment for the “reasonable cost” of the treatment.

Adam Huber (Mount Laurel, NJ) successfully obtained orders for dismissal with prejudice on two Medical Provider Applications. Two separate New Jersey medical providers alleged they were entitled to additional money for medical treatment provided in New Jersey to a New Jersey resident. Each provider claimed that, because the injured worker who received the treatment was a current resident of New Jersey and treatment was rendered in New Jersey, that provided sufficient contact for the court to exercise jurisdiction for a Medical Provider Application and bills should be paid at a usual and customary rate, as opposed to New York’s fee schedule. The worker’s compensation claim that resulted in the Medical Provider Applications was a New York claim, with no New Jersey contacts for the parties at the time of the injury. The injured worker only later moved to New Jersey and received medical treatment with New Jersey providers, who were then paid per the New York fee schedule. The providers’ billed amounts were $221,591.55, $6,157.50, and $6.157.50 for three dates of service. The employer made payments in the amount of $55,488, $1,401.83, and $740.42, respectively, per the New York fee schedule. Adam successfully argued to the court that, because it would not have been able to exercise jurisdiction over the underlying worker’s compensation claim, it would not be able to exercise jurisdiction over the two resulting Medical Provider Applications. Therefore, the providers could not seek additional money in New Jersey based on its usual and customary standard, as opposed to New York’s fee schedule. This saved the employer up to $176,276.30 in potential medical payments. Both Medical Provider Applications were dismissed with prejudice.

William Murphy (Roseland, NJ) successfully obtained orders for dismissal with prejudice where two New Jersey medical providers alleged they were entitled to additional monies for medical treatment provided in New Jersey to a New Jersey resident. The underlying accident involved a truck driver who resided in New Jersey, regularly worked in New Jersey, but sustained injuries in Massachusetts. While the injured worker initially filed a New Jersey workers’ compensation claim, he subsequently opted to pursue his claim in Massachusetts, in part, because Massachusetts allowed him to select his own treatment providers (unlike New Jersey, where the employer designates the treatment providers). Each provider claimed that, because the injured worker was a resident of New Jersey, worked in New Jersey and treatment was rendered in New Jersey, there was sufficient contact for the court to exercise jurisdiction for a Medical Provider Application. As such, they claimed their bills should be paid at New Jersey’s standard of a usual and customary rate, as opposed to Massachusetts’s fee schedule. The providers’ billed amounts were $173,927.52 and $128,088.00. The employer made payments in the amount of $13,872.87 and $7,149.01, respectively, per Massachusetts’ fee schedule. William successfully argued to the court that, because the injured worker had opted to pursue a Massachusetts workers’ compensation claim and had selected these medical providers pursuant to said claim (as a New Jersey claim would have required employer-approval), the payment of these medical providers should be governed by Massachusetts’ workers’ compensation system. Therefore, the providers could not seek additional money in New Jersey based on its usual and customary standard, as opposed to Massachusetts’ fee schedule. This saved the employer up to $280,993.64 in potential medical payments. Both Medical Provider Applications were dismissed with prejudice.

Tony Natale (Philadelphia, PA) successfully defended a claimant’s reinstatement and review petitions and prosecuted the employer’s termination petition. The claimant sustained traumatic injuries when the vehicle he was operating was targeted for collision by a mentally disturbed individual trying to commit suicide. The claim was accepted as compensable, and eventually, the claimant was able to return to work full duty. Nine years later, the claimant alleged his right to reinstatement to total disability and payment of medical bills that quizzically were not submitted to the carrier but were paid, in part, by a personal health carrier. The claimant was also pursuing Heart & Lung benefits, and the township’s bargaining agreement allowed the H&L claim to be governed by the ruling in the workers’ compensation claim. Both sides submitted expert evidence on the issues of full recovery and recurrence of disability and factual evidence on the payment of medical bills. The court found in the favor of the employer on all issues. 

Tony Natale (Philadelphia, PA) successfully prosecuted a termination petition involving a knee injury where claimant’s job duties required him to fill a basket with mushrooms, pivot or sidestep and dump the basket into a slicer machine. During his course and scope of employment, it was judicially determined that he sustained injuries in the form of meniscal tears of the knee and the rather vague “injury” of patellar subluxation. On cross examination of claimant’s medical expert, Tony forced him to admit that the meniscal tears had fully recovered. As for the subluxation, Tony exposed the fact that the expert did not diagnose such a condition in the medical treatment notes but, instead, referred to a “chondromalacia” condition that was NOT judicially part of the work injury. The claimant’s medical expert went as far as to indicate on cross examination that the claimant remained totally disabled from his pre-injury job, even though Tony forced him to admit that he had no idea of the claimant’s pre-injury job. 

Robin Romano (Philadelphia, PA) successfully defended the claimant’s petition to review to add a right hip injury. The claimant had already succeeded in having a claim petition granted that acknowledged the left hip and left hip surgery. The Workers’ Compensation Judge carefully considered the testimony of both medical experts. Importantly, the judge rejected the claimant’s surgeon’s testimony, which found a causal relationship between the right hip and the work injury. Robin presented the defense medical expert, who credibly testified that the mechanism of the original injury would not have caused a right hip injury and, also, that an altered gait, suffered by claimant as a result of the accepted left hip surgery, did not lead to a right hip injury or aggravation of what was clearly pre-existing osteoarthritis. 

Michael Sebastian (Scranton, PA) successfully defended a claim petition alleging a specific loss of the right eye from being hit in the eye with the top of a box. The Workers’ Compensation Judge rejected the claimant’s expert’s testimony that the macular scar, which is in the back of the eye, was caused by the work injury and believed the defense expert, who opined there was insufficient force from the top of the box to cause the injury to the back of the eye. The defense expert testified that the claimant’s loss of vision was unrelated to the work event because the claimant did not have any visible damage to the front of the eye at the time of the accident and that there are dystrophies that can cause macular degeneration in one eye. 

*Prior Results Do Not Guarantee a Similar Outcome
 

What’s Hot in Workers’ Comp, Vol. 27, No. 9, September 2023, 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

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

SIU Gets a Boost: NJ Supreme Court Affirms Insurers' Right to Litigate, Not Arbitrate, Fraud Claims

In a significant win for insurers' Special Investigation Units, the New Jersey Supreme Court clarified that statutory insurance fraud and racketeering claims may proceed in court rather than through PIP arbitration. At issue was whether insurance fraud claims brought under New Jersey's Insurance Fraud Prevention Act (IFPA) and the state's Anti-Racketeering Act (NJ RICO) are subject to mandatory arbitration under the Automobile Insurance Cost Reduction Act’s (AICRA) PIP dispute-resolution framework. Allstate had sued a network of medical practices, physicians, and related corporate entities, alleging a scheme to extract more than $1.7 million in PIP benefits through fraudulent and misleading billing. The trial court dismissed Allstate's complaint and compelled arbitration, reading AICRA's arbitration clause — which covers "any dispute regarding the recovery of... benefits" under PIP coverage, N.J.S.A. 39:6A-5.1(a) — as sweeping in fraud and racketeering claims along with routine benefit disputes. The Supreme Court affirmed the Appellate Division's reversal, adopting Judge Gilson's opinion below (480 N.J. Super. 566 (App. Div. 2025)) as its own reasoning. The Court held that IFPA and RICO claims fall outside the scope of AICRA's PIP arbitration mechanism because that "streamlined and specialized" process cannot grant the relief those statutes contemplate — treble damages, injunctive relief, broad discovery, and joinder of third parties — and because arbitrators lack authority to award compensatory or treble damages to an insurer. The Court also rejected the argument that Allstate's own Decision Point Review Plans independently compel arbitration, finding those plan provisions no broader than AICRA's own arbitration clause. Notably, the Court expressly disagreed with the Third Circuit's contrary holding in GEICO v. Mt. Prospect Chiropractic Center, 98 F.4th 463 (3d Cir. 2024), concluding it is not bound by that federal interpretation of New Jersey law. Insurers retain the right to pursue IFPA and RICO claims in the Law Division, with a jury trial. For SIU units and NJ insurance carriers, this decision is a significant win: it forecloses defense clinics' primary procedural tool for shunting fraud investigations into limited-scope PIP arbitration, where treble damages, RICO relief, and meaningful discovery were never realistically available. Carriers building cases against fraudulently structured clinics, straw-owned practices, or coordinated billing networks can now proceed with confidence that a well-pleaded IFPA/RICO complaint stays in the Law Division rather than being diverted to arbitration on a motion to compel. Practically, this strengthens SIU's leverage in settlement negotiations, preserves civil discovery tools (subpoenas, depositions, joinder of related corporate entities) critical to unwinding complex ownership and referral schemes, and resolves the split with the Third Circuit in favor of NJ insurers — at least as a matter of state law. Expect increased reliance on IFPA civil actions, rather than PIP arbitration demands, as SIU's primary enforcement vehicle going forward.

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

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.