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On the Pulse…Important and Interesting Litigation Achievements…We Are Proud of Our Attorneys for Their Recent Victories

June 1, 2017

Defense Digest, Vol. 23, No. 2, June 2017

CASUALTY DEPARTMENT

Michael Archibald (Tampa, FL), Shane Haselbarth (Philadelphia, PA) and Ryan Burns (Fort Lauderdale, FL) successfully defended an appeal of a favorable verdict in a wrongful death action tried by Michael in a negligent security case. ​Michael represented an affordable housing development where the shooting of a 20-year-old resident occurred at the development’s playground. The decedent was found with cash in his pockets, so it did not appear that robbery was the motive. The homicide investigation was an unsolved cold case. Therefore, the police refused to provide any substantial evidence concerning how the shooting was done or by whom, leaving our client to fend for itself in determining why its security protocols were not the cause of the decedent’s murder. Moreover, during the trial, Michael had to overcome the trial court’s exclusion of critical evidence concerning the decedent’s request for a gun from his friend hours before his death, as well as evidence that would have supported an inference that the decedent was loitering in violation of curfew at the time of his death. Despite these challenges, Michael was able to convince the jury to apportion 67% comparative fault to the decedent, thereby reducing a $1 million verdict to $333,000. The plaintiff challenged the comparative fault apportionment on appeal. After considerable briefing by Shane and Ryan, and oral argument by Ryan, the Second District Court of Appeal issued a decision affirming per curiam, effectively stripping the plaintiff of the ability to petition to the Florida Supreme Court.

Frank Baker and Wendy O’Connor (Allentown, PA) obtained summary judgment in favor of our client, the owner of an event facility, in an action brought by a husband and wife who claimed damages as the result of the wife’s slip and fall on a patch of ice on the facility’s parking lot. Under cross-examination, the wife admitted that she had seen the patch of ice just prior to her fall and had proceeded to walk across it anyway because she “thought she wouldn’t fall.” The plaintiffs also admitted at deposition that they were unaware of any other patches of ice in the area of the parking lot other than where the wife fell. In response to the motion for summary judgment, and contrary to her deposition testimony, the wife submitted an affidavit asserting that the conditions at the parking lot were “generally icy” on the day in question and that she had no safe alternative route into the facility. Additionally, the plaintiffs claimed that the doctrine of assumption of the risk did not apply since the wife was not the driver of the couple’s vehicle and, thus, did not select the parking space from which she alighted. The court rejected the wife’s affidavit, finding it to be “not credible” and “directly contradictory to her previously stated facts.” Applying the principles articulated in Carrender v. Fitterer, the court went on to note that the patch of ice on which the wife fell was “open and obvious” to her, that she chose to traverse the ice, and that she appreciated the risk of doing so, such that summary judgment based upon the doctrine of assumption of the risk was appropriate.

Brittany Bakshi (Harrisburg, PA) obtained summary judgment in a slip in fall case filed in Lebanon County, Pennsylvania on behalf of her client, a janitorial service. The plaintiff was working at a warehouse facility as an order filler. On the date of the accident, the plaintiff allegedly ate something that did not agree with her and needed to use the restroom. Upon opening the restroom door, she observed water on the floor generally and a small puddle in the center of the floor. The plaintiff admitted to seeing the water and appreciated the risk of traversing the slippery bathroom floor. However, she entered and held on to the bathroom stall wall to safely make her way to the stall. Upon exiting the stall, the plaintiff chose to exit a different way than she entered, across the center of the floor without holding onto anything, and she fell. Brittany filed a motion for summary judgment, arguing that the plaintiff encountered an open and obvious condition when she traversed the slippery floor and when she exited the bathroom stall. The court agreed and granted summary judgment.

Adam Calvert (New York, NY) obtained summary judgment for a retailer in a product liability case. ​The plaintiff was burned over half her body when an allegedly defective potholder ignited while she was getting a pan out of her oven. The potholder ignited her nightgown, which went up in flames. Adam represented the retailer before the Supreme Court, New York County, which dismissed the complaint against all defendants. The court dismissed the complaint because the plaintiff’s expert testified that the potholder must have touched the heating element of the oven in order to ignite. It would not have ignited if it were only close to the element. The plaintiff testified that she did not touch the element, which her expert tried to explain by stating that she must have inadvertently touched the element. The court found that the plaintiff’s expert relied on facts not in evidence and rejected his argument, finding that the plaintiff could not show that a defect in the potholder proximately caused the accident.

Walter Klekotka (Mt. Laurel, NJ) obtained a defense verdict by way of a jury trial that was held in Monmouth County, New Jersey. ​Walt defended a supermarket in a case in which a vendor claimed he was struck by a large swinging door that was extended beyond its limits by a piece of machinery being operated by a store employee. When the machinery cleared the door, the plaintiff claimed the door was caused to snap back and accelerate towards him, causing injury to his left shoulder, neck and back. There was no wage loss, but there was a $25,994 net workers’ compensation lien. The jury deliberated over two hours and came back with a 6-0 verdict finding no negligence on the part of our client.

Paul Lees (Allentown, PA) obtained a defense verdict for a warehouse operator following a bench trial in Lehigh County. ​Paul successfully defended a claim involving allegations of $100,000 in property damage to electronic equipment that had been delivered to the defendant’s warehouse. The plaintiff claimed that the defendant’s warehouse forklift operators signed for the goods as undamaged and then damaged the goods as they were removing them from the delivery truck. At trial the warehouse employees testified and showed video depicting how items are unloaded at the warehouse. They denied that they caused any damage to the goods. The defense argued that the damages were consistent with, and appeared to be caused by, the way the goods were strapped down in the delivery truck. The trial court agreed with the defense that the plaintiff failed to prove that the damage was caused by the warehouse or that its employees were negligent. The court dismissed the claim, with prejudice.

Tony Michetti (Doylestown, PA) obtained a defense verdict in the Bucks County Court of Common Pleas. ​The plaintiff tripped on an elevated sidewalk in front of the defendant’s home and suffered cervical, rib and knee injuries. Although the plaintiff had walked over the sidewalk many times prior to the accident, she claimed to have never noticed its condition. The defendant testified that he had observed the plaintiff, and many others, walking on the sidewalk prior to the accident without difficulty. Tony was able to argue that the defendant was not responsible under the licensee standard because the condition did not present an unreasonable risk of harm and the defendant had no reason to expect that the plaintiff would not discover or realize the risk involved.

Tony Michetti also obtained a defense verdict in a landlord out-of-possession case. ​The plaintiff was residing with the tenant in a rental property owned by the defendant. As the plaintiff descended the front steps of the rental home, a corner of the masonry steps broke, causing the plaintiff to fall and suffer a fracture in his dominant hand. Coincidentally, the plaintiff was a mason by trade, and he claimed that his hand injury was permanent and resulted in a seven-figure future earning loss claim. It was uncontroverted that the steps were in disrepair and that, prior to the accident, the plaintiff had offered to repair the steps if the defendant landlord would pay for the materials. The defendant landlord testified that the terms of the oral lease required the tenant to make all repairs to the property, even structural repairs. The tenant, who was the niece of the defendant landlord, denied that she had agreed to make all repairs and presented as an extremely hostile witness. The case was tried in front of a single arbitrator.

HEALTH CARE DEPARTMENT

Grant Cannon (Pittsburgh, PA) obtained a defense verdict on behalf of a primary care physician in a case where the plaintiff alleged the physician failed to order a blood test that would have detected a rare blood disorder called TTP. Five days after seeing our client, the decedent’s condition rapidly declined, and two days later, he died. Prior to trial, the plaintiff’s demand was $975,000. The defense was multifaceted. First, our client directed the decedent to the hospital where a blood test would have been performed, but the decedent refused. Furthermore, the decedent refused outpatient testing, which would have included a blood test. Our client tried to comply with the standard of care, but was prevented from doing so because of the decedent’s choices. Second, Grant contended that the decedent did not die from TTP but, rather, from a related blood disorder called DIC, which is only caused by another underlying pathology, which, in this case, was suspected to be lung cancer.

Fred Roller, Mary Kate McGrath and Michelle Moses (Philadelphia, PA) obtained a defense verdict on behalf of an emergency department physician for his alleged failure to adequately evaluate postpartum bleeding, which resulted in a hysterectomy 24 hours later. ​The plaintiff was 24 years old and from out of state. As she and her family were traveling from Virginia to Reading, Pennsylvania, she presented to the hospital’s emergency room two weeks postpartum with complaints of passing large, golf ball-sized clots within the past hour. Our client noted she was not bleeding in the ER, and in light of a normal hemoglobin, elected not to do a pelvic exam, order an Ultrasound or obtain an OB consult. She was discharged with instructions to follow up with her OB within 24 hours, although she allegedly told the doctor that she and her family were in Reading for the week. She appeared to be fine the next day, even though, 21 hours after discharge, she began bleeding heavily again and returned to the same ER. An ultrasound ordered by a different doctor revealed findings consistent with Retained Products of Conception and requested an OB consult. A total of six hours passed before the OB arrived. The plaintiff testified that during this time, she had massive bleeding and had very little monitoring by either the nurses or the ED doctor. A D&C was performed, but it failed to stop the bleeding, which then necessitated a hysterectomy. The plaintiff claimed that everyone, especially our doctor, failed to act promptly enough to have her condition treated, which she claimed would have preserved her uterus. The plaintiff and her husband testified that they wanted a big family. Putting aside standard of care arguments, the defense jointly presented a causation defense of subinvolution of the uterus, which is a relatively rare condition that manifests about two weeks after delivery and prevents placental arteries from sealing off and for which the prevailing treatment is hysterectomy. The Berks County jury returned a unanimous defense verdict after nearly three hours.

PROFESSIONAL LIABILITY DEPARTMENT

Larry Berg and Kara Pullman (Mt. Laurel, NJ) obtained summary judgment in an employment law matter in which the plaintiff, a former employee of the defendant company, claimed that she was terminated because of her age in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 105-12. The defendant company had an office in New Jersey, but the plaintiff worked out of her home in Massachusetts. According to the defendant, in the seven years prior to her termination, she had not traveled to New Jersey for any work-related reason. The plaintiff claimed to have attended two meetings in New Jersey between 2003 and 2005, each lasting two days, and the last work-related contact the plaintiff claimed she had with the state of New Jersey occurred in 2008 when she supposedly attended a retirement dinner and a “breakfast meeting” with one other person the next morning. The court agreed with the defendant’s arguments set forth in its motion for summary judgment that the LAD protected only New Jersey residents and that the plaintiff’s limited contacts with the state did not afford her the statute’s protections.

Larry Berg and Kara Pullman also obtained summary judgment in a matter where the plaintiff put an offer in on a home in Lambertville, New Jersey, after reviewing its online listing. Both the buyer and sellers were represented by the defendant real estate agency under a dual agency agreement. During the home inspection, the water pressure in the home, which was serviced by a well, dropped after ten minutes. The seller’s real estate agent commented that the issue was probably due to a pressure switch. The inspection did not include an analysis of the well’s capacity or recovery time. The sellers fixed the pressure switch, and a subsequent inspection indicated no further water pressure issues. The plaintiff alleged that, shortly after purchasing the property, water system issues reoccurred, and an assessment revealed that a new well was necessary. The plaintiff alleged negligence, breach of contract, breach of fiduciary duty, common law fraud, and Consumer Fraud Act claims as to the sellers’ realtor and real estate agency. We argued that there was nothing in the record to suggest that the sellers’ realtor made any misrepresentations regarding the property and that he did not commit fraud by expressing his opinion regarding the pressure switch. The plaintiff also failed to present expert testimony that the sellers’ realtor and real estate agency breached the standard of care or that any issues actually existed with the well. The court agreed, and all claims as to the real estate agency and sellers’ agent were dismissed.

Patrick Boland and Mark Kozlowski (Scranton, PA) obtained summary judgment on behalf of a police department and a police officer accused of using excessive force. ​The plaintiff was detained by police following reports of an individual with a gun who was riding an ATV near an old amusement park. The plaintiff appeared to be fleeing police on his ATV when he turned into a parking lot. After dismounting the ATV, the plaintiff was placed on the ground and handcuffed. A firearm was then discovered. After a brief investigation, it was determined that the plaintiff was not the individual sought by police. Although he was initially cited, the charges against him were withdrawn. The plaintiff sued multiple police officers and police departments for alleged violations of his constitutional rights to “freedom from use of excessive, unreasonable and unjustified force against his person, the right to be free from malicious prosecution, the right to be free from false arrest and the right to due process of law.” Initially, a successful motion to dismiss was filed, and our client, one of several police departments, was dismissed. Following the close of discovery, a motion for summary judgment was filed on behalf of our remaining client, a police officer. Because there were no facts in the record to show that our client was involved in the arrest, plaintiff’s counsel conceded the motion could not be opposed, and our client was dismissed from the action, with prejudice.

Christopher Boyle (King of Prussia, PA) obtained a jury verdict in the U.S. District Court for the Eastern District of Pennsylvania on behalf of a police officer. ​The plaintiff, a 67-year-old psychotic with a history of PTSD, engaged in an obscenity-laced altercation at a local McDonald’s and refused to leave. When police from three different jurisdictions arrived, including our client, the plaintiff refused to identify himself, demanded an attorney and demanded to be Mirandized. As other officers placed him in handcuffs, our client stood by with his Taser at his side. The plaintiff was released from the scene without charges after producing identification. In his complaint and deposition, the plaintiff described a 22-year-old “hippie” police officer, 6’2”, thin build with very long hair who was out of control, referring to himself as “Homeland Security,” calling him a terrorist and pointing a “rifle” at him. Our client is a former Marine, 5’10”, 235 pounds, with a military buzz cut, who was not armed with a rifle. In denying summary judgment, the court allowed that the plaintiff could have been mistaken in his description of the officer with the “rifle” and, because our client was the only one displaying a weapon, a jury could find that he pointed the Taser at the plaintiff. The case went to the jury on an illegal seizure claim, which returned a defense verdict in less than an hour.

Jeffrey Chomko (Philadelphia, PA) obtained a non-appealable defense award at binding arbitration in an alleged negligent procurement of insurance case. The plaintiff alleged the insurance agent failed to obtain coverage comparable to the plaintiff’s prior coverage, resulting in an uncovered property damage loss of $220,000. While the arbitrator found that the agent violated his duty of care to the plaintiff, Jeffrey successfully argued that the plaintiff’s own contributory negligence in failing to review and understand his coverage was sufficient to bar any recovery.

Nicholas Chrysanthem and Steven Kaplan (New York, NY) obtained a defense verdict in the United States District Court for the Southern District of New York. ​Our insurance company client adjusted a burglary loss for roughly $1.3 million and wired the proceeds directly to the insured rather than to the bank named as a loss payee on the policy. The bank had a security interest in the stolen inventory and was owed more than $2 million by the insured. Upon receipt of the proceeds, the principal of the insured abandoned his business (and his wife, who was a co-guarantor of the insured’s indebtedness to the bank), took the money and fled the country. With prejudgment interest, the case presented a $1.5 million extra-contractual exposure to the insurance company. The primary issue was whether an ambiguous one-line email message sent by a bank employee to the insured, and forwarded by the insured to the insurer, constituted a waiver of the bank’s right to receive the insurance proceeds. The burden was on the insurer to prove that: (1) the bank employee who sent the email knew sufficient facts about the adjustment of the loss to waive the bank’s rights; (2) her email was intended by her to be a waiver of the bank’s rights; and either (3) she had actual authority to send that message (notwithstanding that she was fired for sending it), or (4) the bank cloaked her with apparent authority to waive its rights and, also, (5) the insurer’s reliance on her email message, as forwarded by the insured, was reasonable. The court ruled in our favor. R. David Lane, Jr. (New York, NY) provided much-needed assistance with the numerous submissions required by the District Court judge.

Jim Cole and Shane Haselbarth (Philadelphia, PA) obtained a complete dismissal, with prejudice, and then a unanimous Superior Court opinion affirming in this suit against an auto insurer. ​The spouse of the plaintiff-insured caused a fatality in a car accident. The auto insurer timely tendered the full limits of the auto policy, and the wrongful death case settled for three times that amount. The plaintiff then sued his insurer, arguing that it should have advised him to purchase higher insurance coverage in light of the higher liability limit ($1 million) purchased on his homeowner’s insurance policy. The trial court and Superior Court agreed that an insurer has no duty to advise concerning the appropriate limits of insurance to purchase nor to “coordinate” the homeowner’s liability limit with his or her auto liability limit. Both courts also rejected a claim for breach of contract based on advertising that the insurer would take care of the insurance needs of its insureds. Finding no deception in the policy limits, the advertising campaign was acceptable commercial puffery.

Bill Conkin (Philadelphia, PA) obtained a defense verdict in an insurance bad faith and breach of contract case where the claim was based on extensive damage to a residential property that had been unoccupied for five years. The plaintiffs, the insureds on a homeowners insurance policy issued by our client Erie Insurance Exchange, claimed over $300,000 for structural damage and an additional $259,000 for personal property damage. In addition, the plaintiffs sought an award of punitive damages, attorneys fees and interest, which may be awarded in an insurance bad faith claim. In 2008, the insureds had moved to West Virginia to run a horse farm. They left their Pennsylvania home full of personal property and unoccupied. Water pipes froze after the utilities were shut off due to non-payment. The house flooded, but the insureds did not know about the flood because they never returned while in West Virginia. The damage to the interior was extensive due to the water, vandalism and theft. It was first discovered by the insured’s brother in December of 2013. All parties agreed it must have taken weeks and probably months for all of the damage to have occurred. Utility records showed that the utilities had been turned off in 2009. Therefore, it was a logical conclusion that the water damage happened around that time, years before the damage was “discovered.” Bill made the argument that no one could prove precisely when the extensive damages occurred. The plaintiffs had the burden to prove that the damage occurred within one year of the date suit was filed per the terms of the insurance contract, but they could not meet that burden due to the fact that they had not resided at the insured Pennsylvania home for at least five years before the discovery of the damage. Accordingly, the court found in favor of our client.

Patrick DeLong and Devon Woolard (Fort Lauderdale, FL) obtained dismissal of the plaintiffs’ amended class action complaint that alleged various Fair Debt Collection Practices Act (FDCPA) violations by a law firm whose practice focused upon mortgage foreclosures. ​In their amended complaint, the plaintiffs claimed the law firm violated three provisions of the FDCPA. They sought to certify two separate classes of similarly situated borrowers. According to the complaint, the law firm violated the FDCPA by attempting to collect from the plaintiffs costs for service of process upon unknown tenants of the property at issue in the underlying foreclosure case and by including in the foreclosure complaint an improper date upon which the plaintiffs allegedly defaulted on their mortgage. The law firm representing the plaintiffs previously filed other putative class actions in Florida District Courts alleging similar FDCPA violations in the mortgage foreclosure context by other defendants. Some of those prior cases were resolved by settlement. We filed a motion to dismiss the amended class action complaint for failure to state a claim upon which relief could be granted under the FDCPA. The United States District Court, Middle District of Florida, granted the motion to dismiss, stating, in part, “[u]nless counsel and the Plaintiffs can, after due diligence undertaken in advance of the suit plausibly plead FACTS that support the claim, it should not be filed in the first instance.”

David Henry (Orlando, FL) successfully defeated a preliminary injunction motion brought by the owner of The Shaker Bar against The Shaka Bar in which the plaintiff claimed the defendant’s mark was confusingly similar and diluting the plaintiff’s mark. ​The court found that the evidence did not show a likelihood of success on the merits and that the defendant’s “shaka” mark and symbol have a well-established meaning in Hawaiian culture.

Adam Herman (Orlando, FL) obtained a dismissal, with prejudice, of a legal malpractice claim where the plaintiff alleged that our client/law firm violated the Bankruptcy Abuse Prevention and Consumer Protection Act by accepting credit cards to satisfy attorneys’ fees. ​The plaintiff brought a one-count complaint in the U.S. District Court for the Middle District of Florida against the firm and sought punitive damages of $1 million, as well as class certification. In a case of first impression, District Court Judge Paul Byron held that a bankruptcy attorney is only precluded from accepting credit cards in satisfaction of fees when the attorney’s motivation is for an improper purpose. The court noted that it is customary for bankruptcy attorneys to expect compensation for legal services and that the applicable bankruptcy statute contains specific provisions regulating a debtor’s transactions with attorneys. Further, it is completely proper for an attorney to accept payment by credit card in Florida under the Rules of Professional Conduct. Accordingly, without more, the mere advice to use credit cards to pay for legal fees did not violate the BAPCPA.

Paul Lees and Matthew Hall (Allentown, PA) obtained summary judgment and the dismissal of all claims against their municipality client. ​The case involved a motor vehicle and pedestrian collision on a state road, which is within the municipality and was undergoing extensive reconstruction. The plaintiff and co-defendants maintained that the construction site, being within the borough, was under its control as the borough was responsible for allegedly closing the sidewalks during construction and forcing pedestrian traffic into the street. Following discovery and a motion prepared by Matt, the court dismissed all claims against our client on the determination that the claim against it fell outside of the Streets and Sidewalks exception under the Pennsylvania Political Subdivisions Tort Claims Act.

Christian Marquis (Pittsburgh, PA) obtained the dismissal of a petition for appointment of viewers in an inverse condemnation action on behalf of a borough. ​The petitioners alleged a de facto taking as a result of water runoff from a storm utility pipe that discharged onto their property, resulting in wet and marshy conditions on a portion of the property. After the filing of preliminary objections to the amended petition for appointment of viewers, the court sustained the borough’s objections, determining that the petitioners failed to allege the existence of a de facto taking because no exceptional circumstances existed that substantially deprived the petitioners of the beneficial use and enjoyment of their property. They only alleged that a portion of their property was affected by the water runoff, but they did not allege that the best and customary use of their property as a residence was affected.

Patricia Monahan and Danielle Vugrinovich (Pittsburgh, PA) obtained summary judgment in favor of our insurance carrier client in an insurance bad faith and breach of contract case. ​The lawsuit arose out of the insured’s claim for “vandalism,” which was made about a year after he learned that his tenant was making significant renovations to the leased property in violation of the lease. The tenant had been paying the insured’s mortgage. The insured did not make the vandalism claim until the tenant stopped paying the insured’s mortgage and the insured was served with a foreclosure notice. Unbeknownst to the insured, the tenant had been taken into custody by the DEA, charged with various offenses related to a nationwide drug ring and, thus, was no longer able to pay the mortgage. The insured then filed a claim with our client seeking damages to his real property and loss of rental income. Trish initially advised our client that the claim was not “sudden and accidental” and, thus, not covered. Moreover, the exclusions for “faulty workmanship,” “renovation,” and “acts of others,” etc., also applied. The insured/plaintiff then filed suit in state court for breach of contract, which was removed to federal court in the Western District of Pennsylvania. The judge agreed on summary judgment that the loss was not “sudden and accidental” and that the aforesaid policy exclusions were applicable. He declined to rule on summary judgment that our client had been prejudiced by late notice, and but he did dismiss the bad faith claim because there was no coverage.

Jeremy Zacharias (Mt. Laurel, NJ) obtained summary judgment in an insurance coverage case filed in Gloucester County Superior Court, Special Civil Part, on behalf of his client. The plaintiff sued the defendant when she was scratched by the defendant’s dog while visiting the defendant’s home. The defendant never notified her insurance company of the claim and proceeded in this case as a pro se litigant. The plaintiff, who later learned of the defendant’s homeowner’s insurance policy, amended her complaint to add the defendant’s homeowner’s insurance company, our client, to provide defense and indemnity on behalf of the defendant. Summary judgment was filed on behalf of our client, asserting that the plaintiff is not an intended third party beneficiary of a tortfeasor’s insurance policy without an assignment of rights or a final judgment entered in favor of the plaintiff. The court granted summary judgment on behalf of our client one day before trial was scheduled to begin.

WORKERS' COMPENSATION DEPARTMENT

Tony Natale (Philadelphia, PA) successfully defended a mushroom distributor in Berks County in an appellate action in which the claimant alleged the underlying Workers’ Compensation Judge issued a decision that misinterpreted the law and unfairly painted the treating physician as not credible. ​Tony had established in the underlying litigation that the treating physician mixed her electronic file containing the claimant’s medical records with another patient, resulting in the inaccurate entries regarding history, pain complaints and treatment modalities; therefore, the judge in the underlying matter found that the physician was not credible. The Appeal Board affirmed the judge, noting that the underlying decision was well within the scope of the law as to the claimant’s failure to meet his burden of proof and that the judge’s decision on all counts was predicated upon the facts of record.

Michele Punturi (Philadelphia, PA) successfully defeated a claim petition seeking workers’ compensation benefits for an alleged work injury. ​Michele presented four fact witnesses from the employer who testified that company procedural policies were not followed with respect to reporting an injury and that the claimant never reported any alleged injury to her supervisors. Michele also clarified that the claimant’s medical expert, a chiropractor, did not have an accurate history and that the basis for his opinions were not supported by the medical records, the complaints, the history or the diagnostic studies. Rather, the Workers’ Compensation Judge relied on the testimony of Michele’s expert, a board certified orthopedic surgeon, and his ability to consider all the medical records and diagnostic studies. This favorable decision also resulted in no liability for the claimant’s attorney’s litigation.

John Swartz (Harrisburg, PA) successfully defeated a review and reinstatement petition and prevailed on a termination petition in a case where the claimant had an accepted work injury for exposure to sulfur dioxide. The claimant filed a review and reinstatement petition to add post traumatic stress disorder. The review petition was granted in part for transient adjustment disorder. However, the judge found that the claimant did not incur post traumatic stress disorder, and the reinstatement petition was denied. John prevailed on the termination petition, with the Workers’ Compensation Judge finding that the claimant was fully recovered from the all accepted physical and mental claims resulting from the work injury.

Ashley Talley (Philadelphia, PA) successfully litigated a petition to terminate benefits despite an attempt by the claimant to include a variety of cognitive, neurological and spinal injuries based upon the opinions of two medical experts. ​The claimant was receiving workers’ compensation benefits for a soft tissue injury she sustained while working for a national financial institution. The employer filed a petition to terminate benefits based upon the opinion of a neurologist, after which, a petition was filed by the claimant seeking to expand the injury. The employer relied upon the expertise of its neurologist, who was found to be more credible and persuasive than the claimant’s experts. The Workers’ Compensation Judge granted the employer’s petition, thereby terminating benefits of the claimant in their entirety.

Kacey Wiedt (Harrisburg, PA) successfully defended against the claim of a school teacher seeking benefits for low back surgery as a result of a work injury. ​The claimant sustained a trapezius strain when she tripped over a hockey stick when distributing exams to her students in a classroom. The claimant received physical therapy and alleged that she injured her low back during the physical therapy exercises. She underwent lumbar spine surgery and related that the surgery and subsequent treatment were the result of being injury during the course of physical therapy. Kacey argued that the surgery and low back injury were not a result of the claimant’s physical therapy but due to degenerative disc disease. The Workers’ Compensation Judge found that the claimant did not suffer a low back injury as a result of physical therapy activities and that the claimant’s activities with physical therapy did not cause the need for surgery, or accelerate or aggravate her pre-existing degenerative disc disease condition. The judge denied and dismissed the claimant’s review and reinstatement petition and granted the defendant’s termination petition.

Kacey Wiedt also successfully defeated a reinstatement petition seeking workers’ compensation benefits for hip replacement surgery as a result of a work injury. ​The claimant initially sustained a left hip injury, resulting in hip replacement surgery in 2012. The claimant then sustained multiple hip dislocations following the hip replacement surgery, resulting in the claimant undergoing hip revision surgery in 2015. The Workers’ Compensation Judge found that the claimant’s hip replacement surgery and subsequent disability were not the result of the initial injury of 2012.

Judd Woytek (Allentown, PA) obtained a termination of benefits in a case where the claimant had injured his lower back while lifting ramps on a trailer. ​Judd presented credible testimony from our medical expert that the claimant’s injuries were limited to a lumbar sprain/strain and that the claimant had fully recovered as of the date of the IME. The Workers’ Compensation Judge rejected the opinions of the claimant’s treating physicians that he had developed lumbar disc protrusions, herniations and radiculopathy as the result of the work injury.

John Zeigler (Harrisburg, PA) obtained a termination of benefits and a denial of claim and penalty petitions in a case where the claimant had injured his lower back from a slip and fall while working as a forklift operator. ​John presented credible testimony from our medical expert that the claimant’s injuries were limited to a lumbar sprain/strain and that the claimant had fully recovered as of the date of the IME. The Workers’ Compensation Judge rejected the opinions of the claimant’s treating physician that he had developed a “floating” discogenic radiculopathy as the result of the work injury, and that the claimant was disabled from employment. The judge credited the employer’s supervisor’s testimony that the claimant had returned to full-duty work without apparent production issues and without any physical limitations for a significant timeframe prior to his treating physician taking him out of work.

*Prior Results Do Not Guarantee A Similar Outcome

 

Defense Digest, Vol. 23, No. 2, June 2017. Defense Digest 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. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2017 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

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