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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. 8, August 2025

August 1, 2025

 

NOTICE

Beginning September 2, 2025, in Pennsylvania, medical fee review applications will be required to be submitted electronically in WCAIS. Pease reach out to any of our Pennsylvania attorneys if you have questions.

 

RESULTS*

Benjamin Durstein (Wilmington, DE) was successful in having a Petition to Determine Compensation Due, asserting a different date of injury, dismissed. The Industrial Accident Board denied the claimant’s Motion to Amend a Petition to reflect a different date of loss because the amendment was made more than two years from the date of the alleged work accident. The pending petition was dismissed, and any new petition with the “corrected” date of loss was barred by the statute of limitations.

Robin Romano, and Michael McMaster on brief (both of Philadelphia, PA), were successful in having a Claim Petition denied and dismissed. The claimant alleged she was hurt when a customer’s car backed into her on purpose. The claimant was later terminated from employment for belligerence to the customer. The employer’s surveillance video showed that the car barely made contact with the claimant. Fact witness testimony by the employer’s district manager, authenticating the footage and detailing the reasons for her termination, plus the testimony of two defense medical experts, convinced the workers’ compensation judge that the claimant failed to meet her burden of proof.

Robert Schenk (Philadelphia, PA) was successful in having a Claim Petition denied. The claimant alleged he sustained an injury to his right elbow when he tripped and fell at work. The workers’ compensation judge denied and dismissed the claimant’s claim, finding no injury or disability. In doing so, the judge noted that the claimant’s testimony as to how he was injured was completely inconsistent with video from the employer’s workplace. The claimant’s testimony was basically that a pallet jack violently hit him and threw him to the floor, causing his injuries. The video showed the claimant tripping over a pallet jack. It also showed him getting up and continuing to work

Audrey Copeland and Tony Natale (both of King of Prussia, PA) convinced the Commonwealth Court to affirm the decision of the Workers’ Compensation Appeal Board in favor of our client, the employer, which upheld the workers’ compensation judge’s denial of a Claim Petition. By Memorandum Opinion, the court found that the judge’s credibility findings were neither contradictory nor arbitrary and capricious and that the decision was reasoned. The court agreed with the employer that the defense experts’ opinions constituted substantial evidence, also noting that the Social Security Administration’s findings of disability were irrelevant to the issue of work-relatedness. The court concluded that the claimant failed to sustain her burden of proving a work-related injury, and since the causal connection between her “lingering symptoms and her work duties” was not obvious, she was required to present unequivocal medical evidence establishing that connection, which she failed to do. 

Robert Fitzgerald (Mount Laurel, NJ) received a significant positive outcome at trial. The petitioner sustained a significant injury in July 2013 and later filed a claim for permanent/total disability benefits. Given the petitioner’s age and the exposure of the case, had the petitioner been successful at trial, he would have received more than 26 years of benefits; an indemnity exposure of $556,000. Prior to trial, the petitioner refused to accept any settlement offer below permanent/total disability benefits. Trial began on July 8, 2025, with the petitioner’s testimony. Following the petitioner’s testimony, the judge dismissed the petitioner’s claim for permanent/total disability benefits and recommended a partial disability settlement, which equated to approximately $57,000 in total exposure, which the petitioner accepted. 

Michele Punturi (Philadelphia, PA) successfully prosecuted a Termination Petition involving a 65-year-old, 35+ year employee of a renowned international automobile corporation who sustained a left knee injury on June 19, 2023. Michele secured medical records that support a significant pre-existing history—with a prior left knee replacement and treatment leading up to June 1, 2023—and resulted in establishing that the only work injury sustained was a left knee contusion. Further, the opinions of the defense medical expert, a board certified orthopedic surgeon with a sub-specialty in the treatment of the knees, were found competent and credible, supporting a full recovery based upon his comprehensive physical examination and his review of records and diagnostic studies. The workers’ compensation judge further found the employer had a reasonable basis to contest all issues and denied attorney’s fees. Such a decision will result in a substantial recoupment of indemnity and benefits payments made throughout the course of the litigation via a Supersedeas Fund Reimbursement recovery. 

Tony Natale (King of Prussia, PA) successfully defended a Penalty Petition filed which alleged that Supreme Court precedent allows the finding of a penalty when a carrier does not immediately issue an award check after a decision on the merits. The check was issued 19 days after the decision (and within the 30-day time period commonly accepted in the business for payment of awards). The claimant argued that payment should have been made within one day of the award. The case turned on legal precedent concerning the efficacy of statements made in dicta versus common sense practice. The case held implications for procedure on payments of awards in Pennsylvania. After hearing oral argument, the court held that the employer’s argument was more logical and supported by the preponderance of the case law. The Penalty Petition was denied and dismissed by way of complete defense verdict.

Tony Natale (King of Prussia, PA) successfully defended a Claim Petition filed by the claimant, a police officer for the township. The claimant was called to the scene of an active shooter barricaded in his home. The officer was placed in a strategic position outside the home with weapon drawn. The standoff lasted many hours but was resolved peacefully when SWAT arrived. The claimant finished his shift and went home. The next morning he awoke with headaches, nausea, double vision and dizziness. Ultimately, he was diagnosed with mini-stroke, nerve palsy and resultant diplopia—he was disabled from working. He presented a neurologist whose deposition was riddled with objections since the neurologist tried to read into the record (and at times misread into the record) the diagnoses of a neuro-ophthalmologist. The neurologist then tried to argue that the claimant’s condition was a psychological injury in origin. All objections were sustained by the court. The employer presented the opinions of a board certified neuro-ophthalmologist, who opined that the claimant has no work-related injury. The court found the employer’s evidence to be more believable, and the claim petition was dismissed—full defense verdict.

*Prior Results Do Not Guarantee a Similar Outcome 

 

NEWS

Blake Hood (Jacksonville, FL) was recently appointed as co-chair of the Jacksonville Bar Association’s Social Security/Workers’ Compensation Committee. 

Ryan Hauck (Pittsburgh, PA) was recently elected by his peers to serve a two-year term as a Council Member on the Allegheny County Bar Association Workers’ Compensation Section Committee. 

William Murphy (Roseland, NJ) authored the article “Medical Marijuana in New Jersey Workers’ Compensation Law,” which appeared in the New Jersey Law Journal’s Cannabis Supplement published on July 11. The article discusses developments since the 2021 Hager decision (Vincent Hager v. M&K Construction, 246 N.J. 1 (2021) and recent shifts in the legal landscape as state and federal laws have evolved with regard to medical marijuana. You can read the article here.

Elias Hassinger (Philadelphia, PA) recently participated in the firm’s Advanced Trial Advocacy and Mock Trial program. This year marked the 25th anniversary of our cornerstone training program that brings together attorneys from across our 19 offices to try a full civil case in our in-house courtroom. Participants gain invaluable experience under the guidance of senior litigators and alumni. Congratulations to Eli and all of this year’s participants for a job well done! 

 

What’s Hot in Workers’ Comp, Vol. 29, No. 8, August 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

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. 

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

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.

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

News

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

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.

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.

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage Case

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News

Marshall Dennehey Announces 2027 New Jersey Super Lawyers And Rising Stars