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What's Hot in Workers' Comp

Commonwealth Court affirms denial of Claim Petition that alleged occupational disease of lead toxicity.

Jerry Mercer v. Active Radiator MPN, Inc. (WCAB); No. 1326 C.D. 2023; filed June 3, 2024; Judge Fizzano Cannon

July 1, 2024

by Francis X. Wickersham

On August 24, 2018, the claimant advised the employer that he had sustained a work-related injury due to lead exposure. The employer issued a notice of denial on September 1, 2018. On September 4, 2020, the claimant filed a Claim Petition seeking benefits as of September 21, 2017, and ongoing, with partial disability between July 1, 2018, and May 31, 2019. 

According to the underlying evidentiary record, the claimant was 60 years old and had worked 40 hours per week since 2015 as a solderer and welder, where he worked with lead solutions and wore safety gloves. The lead solution would get on his clothes, and the process created smoke. The claimant did not recall being exposed to lead in the past. He would at times get sore in his nasal membranes and have nosebleeds, which he thought were from fumes. The claimant had a history of smoking a pack of cigarettes per day. In September 2017, the claimant was told that he was being let go for performance reasons. He essentially did not work from that time due to anxiety and trust issues, which he said were related to the end of his employment with the employer. The claimant had symptoms of headaches and pressure in his face, neck, and ears. 

The claimant presented testimony from multiple medical experts—a PET scan specialist, a clinical psychologist and a psychiatrist—all of whom testified that exposure to lead at work caused the claimant to experience symptoms consisting of lack of concentration, tension, irritability, loss of balance, memory loss, and cognitive impairment and deficits. A vocational expert for the claimant further testified that the claimant’s occupational ability had been entirely eroded since working for the employer. 

The employer presented testimony from a safety manager testified that when their workers began employment, they watch videos and are given handouts regarding the dangers of lead exposure and the need for precautions. This witness also testified that the claimant’s workspace had exhaust fans and a ventilation system, and that uniforms provided to workers are left at the workplace each day and sent out for cleaning. The safety manager also testified that workers are tested for lead every six months. After the claimant’s November 2016 test, an occupational health doctor recommended further testing and removal from the workplace. The safety manager testified that the claimant was laid off in September 2017, along with a work partner, due to an industry slowdown, not due to the claimant’s high test results. The employer also presented a number of experts—infectious disease specialist, psychologist, toxicologist and neurologist—who testified that the claimant had a low level of lead exposure at work, and that the studies performed on the claimant’s brain—and relied on by the claimant’s experts for their opinions on causation—were not fully diagnostic of high exposures to lead. Ultimately, the workers’ compensation judge issued a decision denying the Claim Petition. The claimant appealed to the Appeal Board, which affirmed.

On appeal to the Commonwealth Court, the claimant raised multiple issues, including that the judge capriciously disregarded evidence, failed to issue a reasoned decision, the decision was not supported by the substantial evidence of record, and the judge erred in finding that the occupational disease rebuttable presumption did not apply. 

Relative to the capricious disregard argument, the court stated that, while the claimant was exposed to lead at work, and clearly believed that his current issues were related, his evidence failed to establish either lead toxicity or that his current deficiencies were due to his exposure. The fact that the workers’ compensation judge did not find the claimant’s testimony on this issue trustworthy did not amount to capricious disregard of the evidence. 

As for the claimant’s reasoned decision argument, the court concluded that the claimant failed to establish that the judge insufficiently explained the credibility determinations he made or that they were based on wholly erroneous or incompetent evidence. The court also found that the judge’s decision was based on substantial competent evidence, even though the employer’s experts testified to one degree or another that lead toxicity can result in varied, and even diffuse, manifestations and can be difficult to diagnose or definitively rule out in the absence of baseline lead testing before the claimant worked for the employer. 

Finally, the court found that in order for the occupational disability presumption under Section 301(e) of the Act to apply, the claimant must first establish that he has actually sustained and been disabled by the claimed occupational disease. If the question of whether an occupational disease has been sustained is in dispute and the workers’ compensation judge concludes that, based on the preponderance of the evidence, the answer is negative, the presumption will not apply. The judge rightly found that the claimant failed to meet his burden. 


 

What’s Hot in Workers’ Comp, Vol. 28, No. 7, July 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 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.

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Pennsylvania Supreme Court to Review Whether Legal Malpractice Claims May Be Recast as Breach of Contract Claims

The Pennsylvania Supreme Court recently granted allowance of appeal to consider whether a plaintiff may pursue a breach of contract claim against an attorney based on allegations that the attorney failed to provide competent legal services. The issue is significant in professional liability litigation because it concerns whether a plaintiff may avoid the statute of limitations applicable to professional negligence claims by characterizing the alleged misconduct as a breach of contract. Antoine Poteat retained attorneys Gary Asteak and Nino V. Tinari to represent him in a criminal matter. After his conviction was subsequently overturned through a Post Conviction Relief Act proceeding, Poteat filed suit against his former attorneys alleging that they breached their retainer agreements by failing to provide competent legal services. The attorneys argued that the claims sounded in professional negligence, rather than breach of contract, and were therefore time-barred. The trial court dismissed Poteat’s complaint, but the Superior Court, sitting en banc, reversed. The Superior Court held that the gist-of-the-action doctrine did not bar Poteat’s breach of contract claim because the alleged failure to provide competent legal services could constitute a breach of the parties’ agreement. The Court further held that a legal-services agreement contains an implied duty requiring an attorney to provide competent legal services, even where the agreement does not contain an express provision requiring such services. The Pennsylvania Supreme Court granted review in July 2026 and will consider whether the Superior Court’s decision conflicts with Pennsylvania precedent distinguishing contract and tort claims, including Bruno v. Erie Insurance Co. The Supreme Court will also address whether a plaintiff may maintain a breach of contract claim based on an implied duty to provide competent legal services without identifying a specific contractual provision that was breached. The Supreme Court’s decision could have significant implications for professional liability litigation in Pennsylvania, particularly where plaintiffs seek to characterize claims arising from alleged professional negligence as contractual claims.

Thought Leadership

The Search-Incident-to-Arrest Doctrine Does Not License Strip Searches

In Beatty v. Gardner, No. 25-2860 (3d Cir. Sept. 16, 2026), Kyle Beatty sued police officers Clinton Gardner and Calvin Irvin under 42 U.S.C. § 1983 after they stopped, arrested, and searched him three times during a drug investigation in Williamsport, Pennsylvania. The officers initially smelled marijuana coming from the car in which Beatty was sitting and observed marijuana residue, giving them probable cause to arrest him. Beatty consented to the first pat-down, and the second search was conducted incident to his lawful arrest; neither search uncovered weapons or contraband. The officers then transported Beatty to the police station solely to strip-search him, but the strip search also revealed nothing. The District Court granted the officers summary judgment, concluding that the initial stop, arrest, and first two searches were reasonable and that qualified immunity protected the officers from liability for the strip search. The Third Circuit affirmed, but held that the strip search itself violated the Fourth Amendment. The court concluded that the search-incident-to-arrest doctrine does not automatically permit officers to strip-search an arrestee outside the jail or prison setting. Because strip searches are highly intrusive and the traditional justifications for searches incident to arrest (officer safety and preservation of evidence) did not justify the search of Beatty, the officers generally needed either the arrestee’s consent, exigent circumstances, or a warrant supported by probable cause to believe that a search beneath the clothing would reveal weapons, contraband, or evidence. Here, the officers had none of those justifications. Nevertheless, the court held that qualified immunity barred damages liability because, at the time of the search, the right against a warrantless strip search of an arrestee outside the institutional setting was not clearly established by Supreme Court or Third Circuit precedent. The court likewise upheld qualified immunity on Beatty’s First Amendment retaliation claim and affirmed summary judgment for the officers.

Thought Leadership

Two Tracks, No Preclusion: Ohio Supreme Court Preserves Separate Damages Claims After Chapter 2506 Appeals

The Supreme Court of Ohio has clarified that an administrative appeal under Ohio Revised Code Chapter 2506 does not bar a separate action for damages and declaratory relief that could not have been pursued in the administrative appeal. The Ohio Supreme Court considered Sheetz, Inc. v. Centerville (2026-Ohio-3531) as a result of a certified question from the Southern District of Ohio. The question was whether Sheetz, the gas station/convenience store brand, was barred from seeking damages in a separate action since damages were not sought in their administrative appeal. Ultimately, the Ohio Supreme Court ruled that res judicata does not bar a separate action for damages after ruling on an administrative appeal because R.C. Chapter 2506 is limited to judicial review and cannot grant affirmative relief. The case arose after Centerville’s city council rejected a site plan proposed by Sheetz, Inc. that had received unanimous approval from the City’s planning commission. Sheetz filed an administrative appeal pursuant to R.C. 2506 in the Montgomery County Court of Common Pleas, and two months later filed a complaint for damages and declaratory relief under 42 USC § 1983 as a takings action with the city, city council, and other objectors as improper takings and a violation of due process, as well as interference with business and contractual relationship. The city and city council removed the § 1983 action for damages to federal court. Montgomery County Court of Common Pleas reversed the city council’s denial, and allowed the Sheetz project to move forward. Upon that ruling, the federal court issued a show-cause order questioning whether the § 1983 action was barred by the doctrine of res judicata via claim preclusion (which includes all theories of recovery).  Sheetz argued that Ohio courts of common pleas do not have authority to award damages or declaratory relief as party of the R.C. Ch. 2506 appeal, therefore res judicata could not be triggered to apply to the § 1983 action. Additionally, Sheetz moved to certify the issue to the Ohio Supreme Court, citing differing results between the second and sixth districts on this same issue. Centerville approached the question, not from a claim preclusion standpoint, but from the holding in Grava v. Parkman, Twp which states that a final judgment rendered on the merits bars all subsequent action based on the same transaction or occurrence.  In yet another approach, an objector argued that claim preclusion was satisfied because Sheetz could have raised its damages claims in the administrative appeal – Sheetz disagrees. In their analysis, the Supreme Court of Ohio broke down the elements of a claim preclusion analysis: 1) a prior final, valid decision on the merits by a court of competent jurisdiction; (2) a second action involving the same parties, or their privies, as the first; (3) a second action raising claims that were or could have been litigated in the first action; and (4) a second action arising out of the transaction or occurrence that was the subject matter of the previous action. The Court held that R.C. Ch. 2506 does not permit a party to argue damages as R.C. Ch. 2506 limits the common pleas jurisdiction as if it were sitting on appeal, and therefore can only affirm, reverse, vacate, or modify the appealed order, or can remand the case to the administrative body. Further, the Court held that Grava’s conclusion that a final judgment precludes additional litigation for different relief is inapplicable under this fact pattern because it was meant only to apply to those matters in which the plaintiff brings the exact same case twice, but for new relief. The Court found Grava was inapplicable because Sheetz could have requested damages or declaratory relief in the R.C. 2506 appeal. Therefore, Grava would be nothing more than dicta if it even did apply. Going further, the Ohio Supreme Court disavowed Sixth Circuit precedent which, in reliance on Grava and other district court decisions, permitted an owner to seeking relief under 42 U.S.C. § 1983 alongside an administrative appeal. See Moore v Hiram Twp., 988 F.3d 353 (6th Cir.2021). The Ohio Supreme Court found that the Sixth Circuit had disregarded a critical decision in Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 1993-Ohio-115, which clearly held that a R.C. Ch. 2506 appeal cannot be combined with a complaint seeking other claims for relief. Id. at ¶ 11. To that end, the Ohio Supreme Court has determined that the decisions Moore relied on (outside of Grava) are no longer good law, and that Moore was wrongly decided. The decision draws a clear procedural boundary: Chapter 2506 provides judicial review of an administrative decision, not a forum for independent claims seeking affirmative relief. Although Grava may place claims arising from a single transaction within the potential scope of claim preclusion, those claims are not barred unless the complete claim-preclusion test is satisfied. Because Sheetz could not have pursued damages or declaratory relief in its Chapter 2506 appeal, the separate action was not precluded. The remaining question for practitioners looking to apply or defend against this exception is when does the statute of limitations begin to run on damages and declaratory relief claims related to an administrative decision on appeal? A takings action in federal court has a 2-year statute of limitations, or as a state claim, 4 years (like the other tortious claims raised therein). Correlating this case with others, an administrative appeal will not likely toll the statute of limitations on claims based on a final decision by a municipal authority. Therefore, practitioners should look for these cases to be brought simultaneously.