.

What's Hot in Workers' Comp

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

February 1, 2021

NEWS

Angela DeMary (Mount Laurel, NJ) was a featured speaker in the Camden County Bar Association CLE program, “Practicing Workers’ Compensation Law Remotely and COVID-19 Type Cases.” The webinar was held on January 27 and focused on the process of managing a workers’ compensation claim; what is an essential worker and who is considered a first responder; and recent legal and legislative updates based on the Governor’s Orders. The usage of DocuSign and remote forms as well as Zoom settlements and trials were also discussed.

 

 

RESULTS*

Judd Woytek (Allentown, PA) was successful in receiving a decision denying a penalty petition. The claim had settled by Compromise & Release. The claimant had undergone three surgeries to her wrist while litigating her review petition to expand the accepted injury. As part of the C&R, the claimant agreed that the carrier would not be responsible for any medical bills related to her second and third wrist surgeries. The carrier agreed to pay her $5,000 to cover her out-of-pocket expenses related to those surgeries. Her private health insurance carrier later retracted payments it had made for her follow-up care and physical therapy post-surgery. The claimant then filed a penalty petition against the workers’ compensation carrier when it refused to pay the bills on which the private insurance carrier had retracted payment. The judge denied and dismissed the penalty petition, finding that the claimant had negotiated away her right to seek payment from the workers’ compensation carrier with regard to any bills related to the subsequent wrist surgeries as she had accepted $5,000 in exchange and was bound by the C&R. The workers’ compensation carrier had no obligation to pay the bills.

Judd also received a decision denying a reinstatement petition in a claim where the claimant, who was working under restrictions, sought reinstatement of temporary total disability for a closed period of time when he was laid off due to Governor Wolf’s Order issued in March 2020 directing that all non-life-sustaining businesses close. The judge agreed with our position that the claimant’s loss in earnings was unrelated to the work injury and was due solely to the Governor’s Order. The reinstatement petition was denied and dismissed.

Judd was again successful in receiving a decision denying a widow’s claim for Federal Black Lung benefits. The deceased miner worked in underground coal mining for 11 years. His lifetime claim for benefits was denied after numerous claim filings and appeals. The widow then sought survivor’s benefits based upon the opinion of her medical expert, who opined that the miner’s death was hastened by coal workers’ pneumoconiosis. The judge rejected the widow’s expert in favor of our expert, who testified that the miner’s death was not caused or hastened by pneumoconiosis. The widow requested reconsideration and attempted to submit additional evidence (an additional medical report and 12 medical journal articles) that she had not submitted during the litigation of the widow’s claim. The judge again rejected the claim on reconsideration and found that, even if the employer’s medical expert testimony were rejected, the testimony of the widow’s medical expert was insufficient to sustain her burden of proving by a preponderance of the evidence that the miner’s death was caused by or hastened by pneumoconiosis. The judge also agreed with our argument that the additional evidence submitted in conjunction with the request for reconsideration was impermissible and should be stricken from the record.

Tony Natale (Philadelphia, PA) was successful in dismissing the employer and insurer from a fatal claim as a result of COVID-19 infection. The claimant-widower filed the claim on behalf of his deceased wife, alleging she contracted COVID-19 while working in the capacity of a caretaker for a sick client. Tony argued that the correct employer for workers’ compensation purposes was the claimant’s client, not the named employer. The Workers’ Compensation Judge agreed and dismissed the named employer and insurer as party defendants.

Tony also successfully defended a Philadelphia-based university in litigation surrounding both a claim and reinstatement petitions. The claimant sustained a non-disabling injury in the form of right thumb CMC joint arthritis from her repetitive job duties. After several years of employment, she alleged that her work injury forced her out of the labor market, and she requested disability benefits. The Workers’ Compensation Judge accepted as credible, by preponderance of the medical evidence, that the claimant did not suffer a work-related disability of any kind. A big part of the rationale for this determination was Tony’s cross examination of the claimant’s medical expert, which exposed that the claimant’s disability may have been due to a variety of non-work-related conditions to the left hand and upper extremity.

Tony also successfully defended a Delaware County machine shop before the Workers’ Compensation Appeal Board with reference to the claimant’s appeal from a Workers’ Compensation Judge’s decision denying work-related disability arising from an alleged head injury and a full recovery conclusion of law. Tony was able to have the appeal quashed based on its untimely filing. The Board also adjudged the appeal on the merits (which is unusual) and further found that the appeal lacked merit on all grounds.

Ashley Eldridge (Philadelphia, PA) was successful in defending a claim petition for an alleged spine injury on behalf of a construction company. The claimant was employed as a construction worker for the employer, and a week after being hired, he was allegedly injured while using a jackhammer. He filed a claim petition for multilevel disc injuries in the lumbar spine. Ashley presented the medical testimony of an orthopedic expert who explained how the injury was soft tissue in nature and had resolved as of an independent medical examination. While there was significant, multilevel disc bulges and herniations, which the opposing expert attempted to ascribe as work-related, the judge agreed these findings to be degenerative rather than acute. This conclusion was further supported by an ongoing factual investigation, which uncovered 17 prior low back injuries, the majority of which were denied by the claimant. Ultimately, the judge accepted the defense’s evidence over that of the claimant and granted the full relief requested by the employer.

Michele Punturi (Philadelphia) successfully prosecuted a termination petition and defended the claimant’s petition to review to expand the nature of the accepted injury on behalf of a well-known hospital. The injury was accepted as a right distal bicep strain, which included a partial tear resulting in surgery. The claimant asserted the injury should be expanded to also include right carpal tunnel, right elbow sprain and trigger fingers. A detailed cross-examination of the claimant established the complaints referable to right carpal and trigger fingers began six months after the injury, which was corroborated by the claimant’s treating physician’s records. The IME expert, a board-certified orthopedic surgeon with specialized training in hand surgery, had the opportunity to perform a comprehensive physical examination and review the diagnostic studies, post- and pre-injury medical records and the claimant’s family physician’s records. These records revealed non-work-related carpal tunnel risk factor conditions, including obesity, post-menopausal, non-insulin dependent diabetes and testing for hypothyroidism. It was further argued that the claimant’s medical expert did not have expertise in the surgery involved in the case and failed to review the claimant’s testimony and diagnostic films. Ultimately, the judge found the defense medical expert to be competent, credible and persuasive. This case highlights the importance of a defense expert having the opportunity to review all medical records, diagnostic films, claimant’s testimony and claimant’s expert’s testimony to develop a timeline for claimant’s complaints consistent with the medical evidence.

*Prior Results Do Not Guarantee A Similar Outcome

 

 

What’s Hot in Workers’ Comp is prepared by Marshall Dennehey Warner Coleman & Goggin 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 © 2021 Marshall Dennehey Warner Coleman & Goggin, 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

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.

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.

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.