On the Pulse…Important and Interesting Litigation Achievements…We Are Proud of Our Attorneys for Their Recent Victories*
CASUALTY DEPARTMENT
Ray Freudiger (Cincinnati, OH) obtained a defense verdict in a bench trial on behalf of a retailer. The plaintiff’s car was damaged by a shopping cart that came from the retailer’s parking lot out into the street. The court agreed that, because the plaintiff did not have evidence that an employee of the retailer set the cart in motion, the retailer was entitled to judgment.
Scott Ginsberg (New York, NY) successfully secured dismissal of a New York no-fault/PIP arbitration commenced by a medical provider against our insurance carrier client for non-payment of medical bills. At the hearing, we argued argued that the provider was ineligible for reimbursement of the disputed charges because it was not licensed in New York State with the Department of Education and the Department of State when the services at issue were rendered. Under the New York no-fault/PIP regulations, a provider of health care services is not eligible for reimbursement under the insurance law if it fails to meet any applicable state or local licensing requirements necessary to perform such service in New York or if it fails to meet any applicable licensing requirement necessary to perform such service in any other state in which such service is performed. In support of the threshold defense, we submitted copies of printouts from the New York State Education Department Office of the Professions and the New York State Division of Corporations that demonstrated the provider was not registered with either State Division of Corporations. The printouts were deemed conclusive evidence that the provider was not properly licensed in New York State when the services were rendered and is, thus, ineligible for New York no-fault reimbursement.
Matthew Gray (Melville, NY) successfully appealed, argued and obtained a full dismissal of joint arbitration matters filed against an insurance company when remanded to the lower arbitration forum. The applicant filed two separate, yet related arbitration matters claiming a subsidiary of our insurance company client owed them for the claimant’s unpaid medical bills. The claimant was supposedly involved in a motor vehicle accident and sought payment for medical treatment. The applicant’s position was that payment was owed because the independent medical examination that found a lack of medical necessity was improper and weak, and because the policy of insurance was not yet exhausted. At the lower forum, the applicant was successful due to the arbitrator’s misapplication and misinterpretation of the New York State no-fault regulations. However, on master appeal, the master arbitrator found in the subsidiary company’s favor, after the submission of briefs, and remanded the hearing to the lower forum for an evidentiary hearing before a different arbitrator. That arbitrator found in full favor of our client and denied the applicant’s claims on both matters. Matthew also successfully defended a similar arbitration matter filed against our insurance company client. The applicant filed an arbitration matter claiming our client owed him for the claimant’s unpaid medical bills in the total amount of $20,772.99. The claimant was purportedly involved in a motor vehicle accident and sought payment for medical treatments/surgery. It was argued that our client owed the applicant’s client for the medical services, despite New York State being the improper venue for hearing such a claim. The policy of insurance was written in Pennsylvania, the accident occurred in Pennsylvania and the claimant lived in Pennsylvania. The provider of the medical services, the applicant, as well as the medical facility where the services were rendered were located in New Jersey. There was no apparent connection to the state of New York, other than the fact that the surgeon performing the surgery maintains an office there. The arbitrator agreed that this single contact was insufficient to confer jurisdiction on the New York State no-fault system to adjudicate these no-fault claims in the state of New York. As such, the arbitrator found in favor of our client and denied the applicant’s claims, in its entirety.
Jay Hamad and Alexander Kim (New York, NY) successfully obtained a dismissal on behalf our client in a slip and fall matter. The plaintiff, a minor whose interest was represented by his mother, brought a claim against our client, a contractor, for injuries sustained due to a slip and fall in a school gymnasium. Upon receipt of the complaint, we noticed the plaintiff did not adhere to the strict condition precedent of serving a notice of claim pursuant to New York General Municipal Law Section 50-E. Due to this defect, the plaintiff filed an order to show cause, seeking authority from the court to serve a late notice of a tort claim. This application in New York is generally freely granted to allow claimants to seek recovery on the basis of merit. Nevertheless, we filed our opposition with a motion to dismiss, advising the court that the plaintiff again failed to adhere to statutory requirements of New York General Municipal Law Section 50-E(7) when she did not attach a copy of an amended proposed notice of claim to their order to show cause. After argument, the plaintiff’s claims against our client were dismissed in their entirety. In another matter handled by Jay and Alexander, they successfully obtained summary judgement when a plaintiff brought a claim in Nassau County against the landowner/tenant (our client) for injuries sustained due to a trip and fall over a raised sidewalk condition abutting our client’s premises. Under New York law, an abutting owner or lessee will be liable to a pedestrian injured by a dangerous condition on a public sidewalk only when: (1) the owner or lessee either created the condition; (2) the owner or lessee caused the condition to occur because of a special use; or (3) when a statute or ordinance places an obligation to maintain the sidewalk on the owner or the lessee AND expressly makes the owner or the lessee liable for injuries caused by a breach of that duty. Our motion for summary judgment argued that our client had not caused the condition to occur (as evidenced by a tree well immediately adjacent to the alleged condition) and that controlling local law did not expressly make landowners liable for failing to maintain a sidewalk. Ultimately, the court granted our motion, citing numerous arguments included in our motion, thereby dismissing the plaintiff’s claims against our client and granting our cross-claims for common law indemnity and contribution against a co-defendant. In another slip and fall matter, Jay and Alexander successfully obtained a dismissal on behalf of our client. The third-party plaintiff, a tenant, brought a claim against our client, a co-tenant/employer of the plaintiff. The claim was for common law indemnity, contribution, and contractual indemnity for an underlying incident where our employer sustained injuries due to a slip and fall accident within the building stairwell. Upon review of the underlying contract between the third-party plaintiff and the landlord, which the contractual indemnification claim was based upon, we filed a motion for summary judgment, arguing there was no contractual privity between our client and the third-party plaintiff, and that claims for common law indemnification and contribution were barred by New York workers’ compensation law. We also sought sanctions and fees pursuant to New York CPLR section 8303-a for maintaining a frivolous lawsuit. On the date of oral argument, the third-party plaintiff agreed to execute a discontinuance dismissing all claims against our client, with prejudice. In an interesting product defect and breach of warranty matter, Jay and Alexander successfully obtained summary judgment on behalf of our client, an engine manufacturer. The plaintiff instituted suit against our client in the Eastern District of New York, alleging product defects, breach of warranty, and violation of the Magnuson-Moss Act in connection with the rebuild of vessel engines. During discovery, we were able to obtain testimony demonstrating that the plaintiff’s actions resulted in the limitation of our experts’ ability to inspect the engines in an unaltered condition. We moved for summary judgment on the basis that all of plaintiff’s claims necessitated expert testimony regarding specific alleged failures of the engine parts, which could not be challenged by our experts since the parts were not adequately preserved. After a prolonged oral argument, the plaintiffs’ claims against our client were dismissed.
D. Terrance Hill, Eric Reichenberger and Jordan Goldman (Fort Lauderdale, FL) obtained a dismissal with prejudice in a premises liability claim. The plaintiff brought a negligence claim against a restaurant for damages sustained from an alleged fall on a “dance floor area” of the property. In her initial complaint, the plaintiff alleged she fell due to a slippery liquid substance. Terrance Hill successfully argued the restaurant’s motion to dismiss based upon the plaintiff’s failure to state a cause of action. In her first amended complaint, the plaintiff retracted her slip-and-fall claim and clarified that she was struck by another customer, who backed up into her when another patron dropped a drinking glass on the “dance floor area.” In response, Eric Reichenberger successfully argued a second motion to dismiss, asserting that the restaurant did not have a reasonable opportunity to control either the backing up of the customer or the dropping of the glass by the patron. The court allowed the plaintiff to file a second amended complaint, which was then met with a third motion to dismiss. Therein, the plaintiff asserted the restaurant owed a duty to ensure that the “dance floor” was not overcrowded and to prevent its patrons from bringing drinks into the “dance floor area.” Jordan Goldman successfully argued that placing such a duty upon the premises owner would be far too broad and would render the premises owner an insurer contrary to Florida law. The court agreed and dismissed the plaintiff’s second complaint, with prejudice.
Leonard Leicht (Roseland, NJ) and Adam Fogarty (Mount Laurel, NJ) prevailed on summary judgment for a nail salon owner against negligence and product liability claims by a plaintiff who slipped and fell off-site while still wearing pedicure slippers. After the plaintiff had a pedicure, she left the premises and continued to wear the disposable pedicure slippers. The plaintiff then walked in the rain and eventually slipped and fell upon entering a retail store. The plaintiff brought general negligence and product liability claims against the nail salon’s owner. At the conclusion of discovery, the court granted our motion for summary judgment based upon the plaintiff’s admission that there was nothing wrong with the slippers and her failure to provide expert opinion as to the existence of any defect in the slippers.
Sara Mazzolla and Leonard Leicht (Roseland, NJ) obtained summary judgment for a national concert promoter and public entity venue owner. The plaintiff purchased outdoor lawn seats for a concert at the PNC Bank Arts Center in Holmdel, New Jersey. After the show started, it began to rain, and the plaintiff alleged that the lawn area became slippery, wet, and muddy. The plaintiff attempted to walk down the sloped lawn area towards the stage to buy her husband a beer. While doing so, her foot got stuck in mud which formed with the rain, and she suffered a severe ankle fracture that was surgically repaired. The trial judge dismissed the case on summary judgment and found the plaintiff’s expert’s report to be unsupported. The court reasoned that the plaintiff could not present a claim of liability against the operator for failing to prevent the outdoor grassed seating area from becoming wet and slippery when it rained. He also reasoned that the plaintiff could not prove the property was in a dangerous condition as defined by the New Jersey Tort Claims Act. We believe this decision will be helpful in defending other cases at the same venue involving similar facts.
Sara Mazzola (Roseland, NJ) obtained a no-cause verdict for a national trucking company following a one-day, non-jury trial (conducted virtually) in the Law Division of Hudson County. The plaintiff alleged that our client’s truck swerved into his lane, causing property damage. Sara successfully argued that the plaintiff’s identification of the trailer as belonging to our client was not dispositive of the issue of the identification of the company responsible for operation of the truck (the truck was pulling the trailer at the time of the accident). The judge found the police report was not admissible on the identification of the operator of the vehicle and that, regardless of identification, the plaintiff failed to establish that the operator was negligent.
Kelsey Miller (New York, NY) prevailed in a case venued in Nassau County, where the plaintiff tripped and fell poolside while at a Best Western Hotel in Tennessee. The plaintiff’s counsel argued that the venue was proper due to Best Western’s contacts and marketing in New York. We filed a motion to dismiss claims against both the property owner and the Best Western corporate entity. Upon receipt of the motion and proof of lack of any connection to New York, the plaintiff voluntarily discontinued the case against our client.
Harold Moroknek (Westchester, NY) prevailed in a case where the plaintiff allegedly fell outside a mall and sustained right shoulder tears that required surgery. After a prolonged delay due to the plaintiff’s death, which was unrelated to the injuries received, the court granted our motion and dismissed the case as abandoned.
Matthew Noble and Christian Weimann (Philadelphia, PA) obtained summary judgment in Delaware County, Pennsylvania, for a slip and fall during an active snowstorm. The plaintiff alleged that, after finishing work, she fell in snow during an active snowstorm and was injured while walking in the parking lot toward her car. The plaintiff’s own admission, as well as cell phone video footage taken by a co-worker, confirmed that she fell during an active snowstorm. The plaintiff went to work that day wearing snow boots because she knew the weather was supposed to turn bad later that day. It began to snow sometime between 10 a.m. to 2 p.m. When the plaintiff walked out of the building with a co-worker and began walking toward their cars, they both fell. The plaintiff admitted that some plowing had already been performed by the time she left work. The court found that the meteorological evidence, cell phone video footage taken by the plaintiff’s co-worker, and the plaintiff’s own admission all triggered the application of the “hills and ridges” doctrine to this case. Pursuant to this doctrine, the defendant did not have an absolute duty to clear the premises of ice and snow while the snowstorm was occurring. Moreover, intervention through snow removal processes does not necessarily bar application of the hills and ridges doctrine. Where a landowner takes steps during the course of a snow event, he does not divest himself of the protections afforded to him under the hills and ridges doctrine. In another matter, after a masked and socially-distanced two-day trial in Bucks County, Matthew and Christian obtained a defense verdict in favor of an automotive manufacturer. The plaintiff purchased a new 2018 vehicle on March 10, 2018. Approximately one year after the purchase, the plaintiff complained several times that the start/stop function shuts off and does not restart. The manufacturer identified the problem and was working on a solution. Meanwhile, the dealership told the plaintiff to turn off the start/stop function until a software update came out. The software update came out in early May of 2019, less than 80 days after the plaintiff’s first complaint. The plaintiff asserted claims under the Pennsylvania Automobile Lemon Law, Magnuson-Moss Warranty Act, Uniform Commercial Code, and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, that the vehicle’s repair history was all related to an intermittent and still unrepaired start/stop issue with the car. The defense successfully proved, through witness and expert testimony, that the vehicle’s mechanical problems were fixed in a timely fashion. The repair work done by the dealership under the warranty was effective and reliable, and the problem was permanently repaired. After trial, the judge requested that each side provide a memorandum with findings of fact and closing arguments. Upon review of same, a ruling was issued in our client’s favor.
Thomas O’Malley (Philadelphia, PA) obtained summary judgement in the Philadelphia Court of Common Pleas for a motor vehicle accident involving a tractor-trailer that resulted in significant property damage. The judge agreed with our position that the plaintiff could not prove that our client’s truck was involved in this specific motor vehicle accident and dismissed our client from the lawsuit.
Christopher Power (Melville, NY) was successful in having a homeowners liability claim voluntarily discontinued after filing for summary judgment. Our clients’/homeowners’ house burned down in a fire. The fire marshal listed the cause of the fire as “undetermined.” Our clients were sued by their next-door neighbors, whose house suffered heat damage from the fire. The plaintiffs submitted estimates of approximately $45,000 for new siding, air conditioning, and fencing (the plaintiffs/neighbors had cancelled their own homeowners policy after they paid off their mortgage). After depositions of all the parties, Chris moved for summary judgment, citing the fire marshal’s report, which stated that the cause of the fire was undetermined, and arguing that the plaintiffs lacked any proof of negligence on the part of our clients. After numerous adjournment requests of the motion by the plaintiffs, Chris finally advised plaintiffs’ counsel that the carrier had instructed him to seek costs if the plaintiffs did not voluntarily discontinue the action. The plaintiffs then signed a stipulation of discontinuance. The motion was withdrawn and the matter was closed with no payment.
HEALTH CARE DEPARTMENT
Joan Orsini Ford and Gabor Ovari (King of Prussia, PA) prevailed on preliminary objections in Philadelphia County, as the court found that the plaintiff’s claims were barred by the statute of limitations and the immunity provisions of the Pennsylvania Mental Health Procedures Act. The case involved a medical malpractice action wherein the plaintiff alleged an assault by three patients while the plaintiff had been a patient at a behavioral health hospital. In the complaint, the plaintiff pleaded ordinary negligence. Preliminary objections in the nature of a demurrer were filed by the defendant, raising immunity under the Pennsylvania Mental Health Procedures Act since there was no claim of gross negligence. After the preliminary objections were filed, the plaintiff attempted to cure the defect in the original pleading by filing an amended complaint, which added allegations of gross negligence and additional facts, in an attempt to support the claim of gross negligence. We again filed preliminary objections, arguing that the allegation of gross negligence was a new cause of action that was now barred by the statute of limitations. Since the amended complaint was filed more than two years after the event at issue and raised a new claim, the applicable two-year statute of limitations barred the claim. We also argued that the amended complaint failed to provide any factual support for gross negligence or willful misconduct and, therefore, the hospital was immune from suit. Plaintiff’s counsel did not file a response in opposition. The Philadelphia Court of Common Pleas agreed that the new claim was barred by the statute of limitations and the immunity provisions of the Mental Health Procedures Act, and dismissed the case, with prejudice.
PROFESSIONAL LIABILITY DEPARTMENT
Julie Aiello and Michael Bradford (Tampa, FL) prevailed on a motion for judgment on the pleadings in a declaratory judgment action seeking liability coverage in a catastrophic injury case. The plaintiff was a passenger in a vehicle driven by his wife when she veered off the road and struck a pedestrian, nearly killing him. The pedestrian sued the plaintiff in a separate action, alleging he got out of the vehicle, rolled the pedestrian over, saw he was “mortally wounded,” got back in the vehicle and fled the scene without rendering aid or calling for help. The pedestrian sued the plaintiff for negligently failing to render aid and assistance. The plaintiff brought his declaratory judgment action seeking a determination that he was entitled to defense and indemnity under the liability coverage afforded by his homeowner’s policy. Mike and Julie argued there was no coverage in the first instance because the the insured’s conduct was not “accidental.” Subject to exclusions, the policy provides liability coverage for any occurrence that causes bodily injury. “Occurrence” is defined in the policy to mean an “accident” that results in bodily injury. In addition, they argued that certain exclusions would bar coverage, including an exclusion for bodily injury arising from the “use” of a motor vehicle and exclusions for expected or intended injury and willful or malicious acts. The court agreed and granted final judgment in favor of the firm’s client.
Jeffrey Chomko (Philadelphia, PA) obtained the dismissal of a title agent action in Philadelphia. Jeff argued that the named plaintiff did not have standing to bring the claims because the improper party was named. The Philadelphia court granted the preliminary objections and dismissed the lawsuit against the title search company. Jeffrey also resolved a FINRA Matter involving four private placement investments for a portion of the costs. At issue were alleged losses exceeding $200,000. Leveraging the panel’s favorable decision on an earlier Motion for Eligibility, Jeff convinced claimants’ counsel of the futility of proceeding further. Claimants’ counsel agreed to resolve the case for his filing costs only, split among three respondents.
Christopher Conrad (Harrisburg, PA) successfully defended a local school district in a special education due process complaint by the parent of a former student who was diagnosed with autism, learning disabilities and ADHD. The student had graduated from high school, completed all credits and earned a regular diploma. Yet, the parent claimed that while the student was still attending high school, the school district failed to provide the student with sufficient learning support in reading and math, appropriate social skills training, and adequate vocational and transition services to help the student with life after graduation. Also, the parent claimed the school district failed to take appropriate measures to protect the student from alleged bullying by his peers, including by fellow members of the varsity football team. The hearing officer found for the school district on all issues and concluded that the school district had provided the student with a free appropriate public education during all times in dispute. The hearing officer also found that there was no evidence to suggest that the school district had failed to respond appropriately to the parent’s and student’s reports of bullying.
Ray Freudiger (Cincinnati, OH) and Brad Haas (Pittsburgh, PA) won a judgment for a food service company and its employees via a motion for judgment on the pleadings. The plaintiff lost her job with a car manufacturer after our client’s employees reported her for stealing food. The plaintiff’s complaint alleged that she was targeted and discriminated against due to her race, ancestry, ethnicity and national origin, in violation of Section 1981. She further alleged a conspiracy to interfere with her Section 1981 rights in violation of 42 U.S.C. § 1985. Finally, she claimed damages due to defamation. The plaintiff’s demand had been $220,000. At mediation, the plaintiff refused an offer of $15,000. Her last demand was $150,000.
John Gonzales (Philadelphia, PA) obtained a defense verdict on behalf of a York City Police Officer in the U.S. District Court for the Middle District of Pennsylvania before the Honorable Jennifer Wilson. This was the first civil case tried in a U.S. District Court in Pennsylvania since the court closures caused by COVID-19. The plaintiff alleged that the officer used excessive force in arresting her outside of a bar in the City of York. She filed a Section 1983 civil rights lawsuit, alleging she sustained a traumatic brain injury after the officer threw her head against a brick wall, threw her to the ground and then punched her repeatedly in the face. By utilizing video surveillance footage and several liability and damage experts, we were able to convince the jury that the force used by the officer was reasonable and justified by the plaintiff’s resistance. The jury deliberated for less than 30 minutes before rendering its verdict. John also obtained summary judgment on behalf of a children and youth services group and several of its employees in a civil rights lawsuit filed in the U.S. District Court for the Eastern District of Pennsylvania. The plaintiffs were the maternal grandparents of two children who were removed from the custody of their parents and placed in foster care. The plaintiffs alleged that the defendants violated their substantive and procedural due process rights protected by the 14th Amendment by failing to provide them with custody of the children and notice of court hearings. Addressing an open legal question, the court held that the plaintiffs did not stand in loco parentis to the children and, therefore, did not enjoy 14th Amendment protections. The court dismissed all claims against the county and the individual county employees.
Jay Habas (Erie, PA) and Morgan Randle (Pittsburgh, PA) successfully handled a case with a lengthy and complex procedural history involving a plaintiff who filed lawsuits all over the country claiming violation of state and federal rights. The defendants’ preliminary objections were granted by the court, thereby dismissing our clients: Mercer County, the Mercer County Tax Claim Bureau and various individual commissioner defendants. After reviewing the defendants’ preliminary objections, the plaintiff’s own objections to our preliminary objections, holding a hearing on the filings and ordering subsequent responses from each party, the court denied the plaintiff’s objections and granted the defendants’, resulting in the dismissal of our clients.
Mark Kozlowski (Scranton, PA) obtained the dismissal of a lawsuit against a municipal client. The plaintiffs contracted with a builder to construct a 5,000 square foot home. In accordance with the Uniform Construction Code, the local township contracted with a privately-owned company to serve as a code enforcement and permit officer. The company issued a building permit, inspected the home at several points during construction and eventually issued a certificate of occupancy. However, the plaintiffs claimed that the home had significant structural and aesthetic defects, and the code enforcement officer failed to conduct proper inspections during the construction process. The plaintiffs sued their builder, the code enforcement officer and the township. The township was alleged to have negligently hired and/or negligently supervised the code enforcement officer. Preliminary objections were filed in response, raising governmental immunity as a clear defense to the negligence claims against the township. Following oral argument, the court sustained the preliminary objections and dismissed the township from the action, finding there were no plausible claims for negligence based upon application of the Pennsylvania Political Subdivision Tort Claims Act.
Jack Slimm and Jeremy Zacharias (Mount Laurel, NJ) successfully attained dismissal of a multi-million dollar legal malpractice, fraud and conspiracy case in the Superior Court of New Jersey, Monmouth County. The action was originally filed in 2015 against an attorney and his prior law firm, arising out of a multi-million dollar land development transaction. The allegations against the attorney included legal malpractice, fraud, conspiracy to commit fraud, tortious interference, conversion of property, unjust enrichment and violation of the New Jersey RICO Statute, among other causes of action. The 2015 case was dismissed based on the plaintiff’s failure to file the appropriate Affidavits of Merit against his attorneys and its firm. The court agreed with counsel’s argument that, based on the Entire Controversy Doctrine, the Doctrine of Res Judicata and the Collateral Estoppel Doctrine, the plaintiff’s claims filed against the attorney and his firm were litigated and decided previously and that the plaintiff’s work precluded him from bringing these new claims in a separate court. In its 2020 comprehensive opinion, the court found that the plaintiff had petitioned the court numerous times to seek the same relief in the 2015 case, applying now to a different court and filing a new lawsuit in which he alleged the same actions that were previously dismissed. The court properly dismissed the claims against the attorney and its firm, holding that these claims had already been argued before and decided by various other judges and would not be permitted to proceed before the court.
Mark Volpi (Melville, NY) successfully obtained dismissal of claims for negligent hiring/supervision, false imprisonment, and intentional infliction of mental distress arising from an incident where the claimant was allegedly lured to a residential apartment building in New York City under false pretenses and sexually assaulted by the desk security guard in a back room of the lobby. The guard involved was duly licensed and had no criminal history. At trial, he was criminally convicted and sentenced to prison. The plaintiff contended that the guard’s employer was negligent in its hiring of the guard and that it failed to properly supervise his actions at the building, particularly in light of the fact that, during the criminal trial, some evidence surfaced that the guard may have committed a similar assault three days earlier while working at another building for a different company. After more than four years of discovery, we moved for summary judgment on behalf of the guard’s employer and the building owners/managers, which was granted, dismissing the plaintiff’s claims in their entirety.
WORKERS’ COMPENSATION DEPARTMENT
Michael Duffy (King of Prussia, PA) won a case on appeal, reversing the judge’s decision. Our client issued a Notice of Temporary Compensation Payable (NTCP), agreeing to pay both indemnity and medical benefits for a lumbar strain allegedly sustained by the claimant. The 90-day period began on April 22, 2018, and ended on July 20, 2018. On June 21, 2018, the claimant filed a claim petition for workers’ compensation benefits, alleging a low back injury. On July 17, 2018, the carrier issued a Notice Stopping Temporary Compensation Payable, stopping benefits as of June 5, 2018, and a Notice of Compensation Denial. Thereafter, the claimant filed a petition for penalties, averring the carrier violated the Pennsylvania Workers’ Compensation Act by failing to stop benefits within five days of receipt of the last payment of benefits. Accordingly, the NTCP converted to a Notice of Compensation Payable (NCP). The judge issued an Interlocutory Decision, ordering the carrier to reinstate disability benefits due to its failure to stop the claimant’s benefits within five days of the last payment. The carrier appealed, arguing that the Interlocutory Order was a final adjudication, merely labeled as “Interlocutory.” The carrier argued that because the judge’s order drastically altered the procedure and burdens of the litigation, it was a final adjudication and the carrier had a right to appeal therefrom. The carrier further argued that, even when a defendant fails to file a notice stopping within five days after the last payment, but does so within the 90-day NTCP timeframe, the NTCP does not convert to a NCP. The Workers’ Compensation Appeal Board agreed and reversed the judge’s order. In another case, Michael also received a favorable decision in a case involving claim and penalty petitions. The claimant alleged cervical injuries requiring surgery. Our medical expert agreed that surgery was required but did not agree that a work injury occurred, based upon the records obtained following the claimant’s deposition. Though the claimant testified he had never had prior injuries or treated for his neck prior to the injuries, Mike obtained medical records showing treatment for the same complaints two weeks prior to the work injury. The judge denied the claim and penalty petitions.
Ashley Eldridge (Philadelphia, PA) successfully prosecuted a termination petition on behalf of a national communications carrier. The claimant was injured in a work-related motor vehicle accident and then from a subsequent altercation with the other driver. The employer acknowledged significant cognitive injuries, which Ashley was successfully able to terminate through medical evidence from a Board Certified orthopedic surgeon. On this basis, the judge granted a complete termination of benefits despite ongoing subjective complaints of disability from the claimant. Ashley also successfully defended a penalty petition seeking to impute liability for surgical treatment. The claimant in this matter suffered a work injury while working as a lineman for a national communications carrier. The injury was acknowledged as a cervical herniation at C5-6, which led to surgical repair that the employer successfully challenged as unreasonable and unnecessary. Following surgery, the claimant pursued significant post-operative treatment that the employer denied as not compensable. A penalty petition was filed based upon this denial, and evidence was presented on the issue of whether the employer was liable for treatment that, although not challenged, was, by proxy, unreasonable and unnecessary by virtue of the precipitating surgery. The judge agreed with Ashley and denied the penalty petition.
Kiara Hartwell and Robert Fitzgerald (Mount Laurel, NJ) received a favorable decision in a New Jersey workers’ compensation matter involving a compensable claim for right hip and shoulder fractures sustained in a work-related fall. At issue was the level of permanent disability for the compensable injuries and the relatedness of a subsequent hip replacement surgery. The petitioner’s demand before trial was more than $450,000, plus almost $78,000, for medical expenses. The employer’s final offer was $180,000. After a three-day trial in Ocean County, the judge awarded permanency benefits totaling less than $153,000. Further, the judge determined that the hip replacement surgery was not related and denied the entire $78,000 medical bill claim.
Tony Natale (Philadelphia, PA) successfully prosecuted a de novo request for hearing. The hearing was to challenge the Pennsylvania Bureau of Workers’ Compensation Fee Review Section’s Final Determination that an injured worker’s shoulder surgery expenses must be paid by the insurance carrier and the employer. Tony argued that the work-relatedness of the shoulder surgery was in dispute, thus barring the Bureau’s attempt to compel payment. Tony also proffered the argument that due process of the provider remained intact since a challenge to work-relatedness must be adjudicated before a provider has standing to challenge the amount or timeliness of payment. The decision of the court quashed the Bureau’s determination and held that no surgical expenses were payable. Tony also successfully defended a national car insurance underwriter/carrier in an appeal before the Workers’ Compensation Appeal Board. In the underlying action, the claimant alleged that her job activities caused her to succumb to carpal tunnel syndrome, requiring surgical repair. The workers’ compensation judge found the claimant’s conditions not to be work related. On appeal, the claimant argued that the judge’s conclusions of law were not reasoned and not supported by the record. Tony convinced the Board that there was substantial evidence to support the judge’s findings and conclusions and that the Board, therefore, could not overturn on review.
Lori Strauss (Philadelphia, PA) successfully defended a claim petition filed against a group-home facility. The claimant alleged that he suffered a significant, disabling knee injury while carrying an air conditioner at work during the early hours of his shift. The claimant worked his entire shift, performing his full work duties for the remainder of his day. The claimant testified that he reported the work injury to a representative of the human resources department upon his completion of the shift. We offered testimony from three members of the human resources department who all contested the claimant’s testimony. Additionally, we offered video from three cameras located in the facility which showed the claimant moving freely and, furthermore, showed that the claimant did not enter the human resources office suite on the day of the alleged incident. The judge found the claimant and his doctor not credible and further found all of the employer’s witnesses and evidence to be more credible and convincing. The claim petition was denied and dismissed.
Judd Woytek (Allentown, PA) successfully defended a petition to review filed by a claimant seeking to expand the description of injury to include low back, spine, and hip problems due to an antalgic gait. The claimant alleged the injuries resulted from the accepted injury to his foot when it was impaled by a knife. The judge credited our medical expert’s opinion that the claimant did not develop any of those issues due to altered gait. Judd also successfully defended a survivor’s claim for Federal Black Lung Benefits. The miner had worked 11 years in underground mining, had acknowledged simple coal workers’ pneumoconiosis (CWP) and had died due to heart failure and COPD (per the death certificate). The judge credited the opinions of our medical expert that the miner’s simple CWP did not cause or hasten his death and rejected the opinions of the claimant’s medical expert, who opined that the miner’s CWP resulted in inflammation and arteriosclerosis that resulted in his heart failure and death. Judd also successfully defended a claim petition in which the claimant alleged that he suffered an L4-5 recurrent disc herniation, aggravation of spondylosis, spinal stenosis, and radicular pain into the legs as the result of heavy lifting at work. The judge denied and dismissed the claim petition based upon the credible testimony of our employer’s witness and our medical expert. The judge rejected the testimony of the claimant and his medical expert. In a final matter handled by Judd, he successfully defended a reinstatement petition and two penalty petitions filed by the claimant. The judge found that the claimant failed to prove a loss in earnings related to his work injury since returning to work. Instead, he found that the claimant’s loss in earnings was due to lack of work caused by weather conditions or other factors. Additionally, the judge denied both penalty petitions, finding that the claimant had failed to prove a violation of the Act by the carrier for refusal to pay wage loss benefits and medical bills. The judge found that the medical bills were properly denied by the carrier for lack of documentation as required by the Act.
*Prior Results Do Not Guarantee A Similar Outcome
Defense Digest, Vol. 27, No. 1, January 2021 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. © 2021 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.