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What's Hot in Workers' Comp

Court reverses Appeal Board ruling on an entitlement to reinstate benefits as of date claimant returned LIBC-760 form to employer, as benefits were in suspension status because of a judge’s prior decision, not for claimant’s failure to return the form.

Kenneth P. Marinack v. City of Pittsburgh (WCAB), et al.; No. 1161 C.D. 2022, No. 1163 C.D. 2022; filed July 12, 2024; Judge McCullough

August 1, 2024

by Francis X. Wickersham

This case involves multiple intertwined rounds of litigation. The claimant was a firefighter who sustained injuries in May 2004, when he fell in a stairwell while pulling down a ceiling in a burning building. The employer issued a Notice of Compensation Payable (NCP) for a left shoulder rotator cuff tear and aggravation of degenerative disc disease in the low back. 

In 2008, the employer filed a petition to suspend benefits as of September 16, 2008, alleging the claimant had retired and voluntarily removed himself from the workforce. The petition was granted by the workers’ compensation judge, but the Appeal Board reversed on appeal, concluding that evidence showed the employer had fired the claimant. 

The Commonwealth Court affirmed, and the employer filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court. That court had just decided the case of City of Pittsburgh v. WCAB (Robinson II), 67 A.3d 1194 (Pa. 2013), which established a new framework for voluntary withdrawal from the workforce cases. Based on that decision, the case was ultimately remanded to the workers’ compensation judge to make findings regarding the claimant’s separation from the workforce. This time, the judge dismissed the suspension petition, and the Board affirmed, as did the Commonwealth Court.

Meanwhile, in 2010, the employer filed another suspension petition, alleging the claimant had been self-employed as a handyman since his injury. The claimant also filed a review petition, alleging an incorrect description of injury and seeking to add the neck from a 2009 motor vehicle accident that caused “increased” neck problems and increased back problems, leading to low back surgery. 

In litigation before the judge, the employer offered forms LIBC-750 and 760 completed by the claimant. LIBC forms from January 2011 reflected earnings from May to December 2009, but forms thereafter were inconsistent as to earnings during this period. Although the claimant testified that he did not work after December 2009, financial records introduced by the employer suggested otherwise, and the judge suspended the claimant’s benefits as of June 2009. According to the judge, a suspension of benefits was fully justified as the claimant was not credible as to providing information regarding his self-employment, as directed by the judge. The judge also dismissed the claimant’s review petition, finding the evidence insufficient and noting that a report from low back surgery performed in March of 2011 did not address causation. The decision was affirmed on appeal to the Appeal Board and the Commonwealth Court.

Then, in 2016, the claimant filed a reinstatement petition, alleging a worsening of his condition as of March 17, 2011, the date he underwent low back surgery. At a hearing before the judge in connection with this petition, the claimant gave employer’s counsel a completed LIBC-760 form dated June 22, 2018, indicating that he was not currently employed or self-employed and had been self-employed from May 1, 2009, to December 1, 2009. The judge denied claimant’s reinstatement petition on the basis that it had already been addressed by the judge in the prior decision and was, therefore, barred by res judicata and/or collateral estoppel. However, the judge also found that the claimant met the requirement of reporting information, via the LIBC-760 form presented to employer’s counsel at the hearing, as of November 20, 2018. The Board affirmed the decision on appeal. However, it remanded the case to the judge for findings as to whether benefits should be reinstated as of November 20, 2018, based on the claimant’s production of the LIBC-760 form on that date. On remand, the judge ordered the reinstatement. The Board affirmed on appeal. 

The Commonwealth Court affirmed the Board relative to the claimant’s request for reinstatement of benefits as of March 17, 2011, agreeing that res judicata barred his claim. According to the court, the claimant was well aware of the worsening of his low back injury during the prior proceeding and, therefore, should have litigated it during that time. However, the court reversed the Board’s decision reinstating the claimant’s benefits on the date that the LIBC-760 form was returned. The court noted that in the most recent round of litigation, the claimant never asserted that his benefits should be reinstated because he returned the LIBC form, and he never argued that the return of the form cured the suspension. According to the court, in the prior case, the judge found that a suspension of benefits was justified because he did not think the claimant was telling the truth about his earnings during the relevant period, and the return of the form nine years later, with the same information previously rejected by the judge, did not cure anything. 


 

What’s Hot in Workers’ Comp, Vol. 28, No. 8, August 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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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.

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

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.