Casualty Department

Christopher Santoro (Philadelphia, PA), Jennifer Roberts, Anna DiLonardo and Robert Demeusy (Melville, NY), and Art Bromberg (Roseland, NJ) obtained a unanimous defense verdict after a nine-week trial in Suffolk County, New York, where the plaintiff’s counsel had requested $40 million in damages. The plaintiff was 51 years old when she was diagnosed with peritoneal mesothelioma, allegedly as a result of being exposed to an asbestos-containing joint compound manufactured and sold by our client. The plaintiff, who was 56 at the time of trial, testified that she had little or no knowledge of ever being exposed to asbestos. However, her older sister, who served as the only product-identification witness at trial, testified that she recalled their father had used an asbestos-containing joint compound on two occasions, approximately 50 years ago, when he repaired their home after a fire in 1970 and when he built a home in Florida around 1975. The plaintiff was five years old during the alleged exposures, and her sister was seven years older. The plaintiff’s sister testified that she had a vivid memory of her father using six different joint compounds during the two projects, including our client’s product. She also testified that the plaintiff was present hundreds of times when their father mixed, applied and sanded the joint compound. At trial, we called an industrial hygienist, a toxicologist and an epidemiologist, who testified that the type of asbestos fiber used in our client’s joint compound did not cause or contribute to her mesothelioma because the fibers are too short and do not cause disease. Our epidemiologist testified that the plaintiff’s mesothelioma developed spontaneously and was not the result of asbestos exposure. We also called a construction expert, who testified that the sister’s testimony regarding the amount of joint compound used and the time the sister was exposed were excessive. The jury deliberated an hour before returning the verdict. Post-trial comments from jurors indicated they did not find the sister to be credible.

Kimberly House (Philadelphia, PA) received a defense verdict when the arbitration panel found in favor of the defendant in a motor vehicle accident case where the plaintiff was driving a dump truck and claimed he was side-swiped by a tractor-trailer. The plaintiff filed suit against the driver of the tractor-trailer and his employer, both of whom were represented by Kim. It was the defendants’ position that the plaintiff was not side-swiped, but that the plaintiff actually rear-ended the tractor-trailer because he was going too fast to stop as the tractor-trailer moved from the right lane into the left lane. At the arbitration, plaintiff’s counsel attempted to introduce photographs that were not produced in discovery and were only shown by the plaintiff to his attorney the morning of the arbitration. Plaintiff’s counsel also attempted to enter into evidence the police report. Kim was successful in getting both items of evidence precluded. The key piece of evidence was that the plaintiff admitted, both in his written responses to discovery and during his testimony, that he first noticed the defendant’s vehicle merging into his lane when the defendant’s vehicle was 30-40 feet ahead of him.

Christopher Power (Long Island, NY) was successful in having a case dismissed on summary judgment in Brooklyn, New York. The plaintiff was a ticket agent for an airline at LaGuardia airport. Our client was the cleaning service for the airport terminal. The plaintiff claimed she tripped and fell over a “worn/torn defective” floor mat behind the ticket counter. Depositions of the defendant indicated that they did not own, control, maintain or supervise the mats behind the airlines’ ticket counter. Summary judgment was filed in 2020. After two lengthy oral arguments in February 2022, the court granted the defendant’s motion for summary judgment, dismissing the action.

David Wolf (Philadelphia, PA) and Brittany Bakshi (Harrisburg, PA) were successful in having preliminary objections sustained and their client dismissed in a case originally filed in Philadelphia County and transferred to Lancaster County. The plaintiff crashed his motorcycle in Lancaster County, allegedly due to faulty road construction signs. Our client was a paving contractor, joined by the plaintiff in place of a “John Doe” defendant after the expiration of the statute of limitations. While the case was pending in Philadelphia, David filed preliminary objections on the basis that the plaintiff failed to comply with Pa.R.C.P. 2005, which requires that the plaintiff file a motion with an affidavit describing the nature and extent of the investigation that was made to determine the identity of the defendant. Once venue was transferred, Brittany re-filed the preliminary objections, maintaining the position that the plaintiff failed to comply with the technical requirements of Rule 2005. The Lancaster County Court agreed and dismissed the complaint against the client.

Matthew Gray (Melville, NY) successfully secured dismissal of dual New York No-Fault/PIP arbitrations. The applicant, a major medical provider, filed joint arbitration matters in the aggregate amount of $46,095.41, claiming our client owed it for the claimant’s unpaid medical bills. The claimant had been involved in a motor vehicle accident and sought payment for medical treatment. Counsel for the medical provider argued that the original denial basis was insufficient to deny the payment of the claims. However, after Matt’s successful argument at the arbitration hearing, our client’s policy of insurance was found to be completely and properly exhausted. Therefore, the arbitrator found in full favor of our client and denied the applicant’s entire claim, on both matters.

Lucinda James (New York, NY) successfully secured dismissal of a New York No-fault/PIP arbitration commenced by a medical provider for non-payment of $190,608.88 in medical bills. In her defense brief, Lucinda argued that, as the policy had exhausted, the medical provider was not entitled to any payments on the bills at issue. In support of her policy exhaustion defense, Lucinda submitted copies of the Policy Declarations page and PIP Payment Ledger. At the hearing, Lucinda argued that the claim should be dismissed as the assignor received the full benefit available to them under the policy, and because the arbitrator lacked authority to increase the amount of statutorily and contractually limited coverage. The arbitrator dismissed the claim for $190,608.88, holding that the respondent-carrier established by a preponderance of credible evidence that the $50,000 in mandatory PIP coverage available to the eligible injured party had been paid, and there remained no further coverage for the disputed services at issue.

Oner Kiziltan (Fort Lauderdale, FL) successfully obtained a dismissal through a motion to dismiss that challenged the plaintiff’s right to sue based on the insurance policies’ arbitration and choice of law provisions. The case involved a PIP claim in which the plaintiff was seeking a judgment based on an alleged underpayment of an imaging code. The plaintiff’s argument stemmed from recent case law in Florida which held that Fla. Stat. 627.735(5)(a)(2) states that when bills are subject to the 2007 Medicare Part B Fee Schedule, payments “may not be less than the allowable amount under the applicable schedule of Medicare Part B for 2007 for medical services, supplies, and care subject to Medicare Part B.” In this suit, the defendant reimbursed the plaintiff’s bill at an amount that was less than the 2007 floor established by recent case law. However, we filed a motion to dismiss and compel arbitration, citing the doctrine of lex loci contractus, which requires Florida courts to apply the law of the state where the contract was entered into. Here, the policy was issued in New Jersey. Accordingly, we argued that since the New Jersey Automobile Reparation Reform Act allows any party to choose dispute resolution rather than a traditional New Jersey Superior Court Action, the immediate court should apply the same standard and dismiss the suit so that the parties may go to arbitration. The court agreed and dismissed the suit.

Lindsay Korn (Melville, NY) secured dismissal of a New York No-Fault/PIP arbitration. The applicant, a New Jersey medical provider, filed an arbitration demanding a claim for $88,896.31 against our client for unpaid medical bills. The claimant was involved in a motor vehicle accident and underwent assorted medical treatment. The applicant’s counsel argued that the claim was appropriately billed pursuant to the applicable Fee Schedule and that the provider was owed payment. However, Lindsay successfully argued that, pursuant to 11 NYCRR 68.6 (c), the provider did not comply with the applicable fee schedule, overbilled, and the benefits on the insured’s policy were exhausted. The arbitrator found in favor of our client and denied the applicant’s $88,896.31 claim in its entirety.

Christopher Block and Anthony Sango (Roseland, NJ) prevailed on a motion for summary judgment in favor of a project manager in a serious bicycle accident lawsuit. The plaintiff was thrown off his bike after striking a sizeable pothole in front of a building where our client performed work several years earlier. In a brief written by Anthony Sango and argued by Christopher Block, we successfully argued that the plaintiff’s alleged attempts to connect our client with the existence of the pothole were far too attenuated to be of any assistance to a jury. Following oral argument, the judge, sitting in Hudson County Superior Court, agreed and granted summary judgment.

James Hanratty and Sean Reeves (Jacksonville, FL) won final summary judgment in a wrongful death negligent security case involving the shooting of a 16-year-old. The plaintiff’s decedent was shot and killed while allegedly on his way home from school. Sean and Jim were able to prove that the young man was a trespasser on the common area of the property where he was shot, even though his aunt was a tenant in the apartment complex. The decedent’s family claimed he was on his way to see her. Our investigation revealed that he was connected to local gangs and that, at the time of his shooting, he was wearing a ski mask and carrying a handgun.

James Kallaher (Jacksonville, FL) won summary judgment in favor of our client in a premises liability case in the United States District Court, Middle District of Florida. The plaintiff claimed to have tripped over a box tie in the parking lot at a car dealership. She had two surgeries on her back that she claimed were needed because of the injuries from her fall. The demand was $2 million. We won summary judgment on the basis that plaintiff had no evidence the car dealership had knowledge of the transitory substance which she claimed created a dangerous condition and caused her to fall.

Amanda Podlucky (Orlando, FL) won summary judgment in favor of our client, a vacation rental management company, in a premises liability case involving a trip and fall. The plaintiff fell while exiting the vacation rental after a four-day stay. The plaintiff testified that she tripped and fell while leaving the home as the sidewalk from the front door to the parking lot had three steps. She claimed that she could not see the step-down because it was dark. However, she ultimately admitted that she did not know where she was looking or whether she just forgot the step was there. The management contract for that home required specific maintenance and housekeeping services, but the property manager had no control over the exterior sidewalks, landscaping or lighting within the resort. The manager did have an obligation to change standard light bulbs, including the one over the front door, but there was no testimony to suggest that this light was not working or that the bulb had to be replaced. The court agreed that with Amanda that summary judgment was proper as there was no duty or obligation going toward the areas of the premises at issue and as there was no genuine dispute as to any material fact regarding the porch light.

Amanda Podlucky (Orlando, FL) won summary judgment in favor of our client, the owner of a commercial office building, who rented the premises to a bank. The plaintiff was an employee of the bank who fell in the break room due to a transitory foreign substance on the floor, which allegedly came from a vending machine. The plaintiff attempted to file suit against the landlord of the building where she worked. She was walking in the break room when she slipped on a substance that allegedly leaked from the vending machine. The bank manager arranged for the vending machine to be there, and the bank paid for the services from the machine’s owner. The court agreed that summary judgment was proper as the landlord relinquished control of the premises to the bank. The court also found that the incident arose from the actions of the bank and/or vending machine owner and was not an inherent property defect over which the owner had a duty.

Health Care Department

Janice Merrill and Bradley Blystone (Orlando, FL) obtained a directed verdict in a medical malpractice case. The plaintiff, a 61-year-old female with an undisclosed history of seizures, returned to the emergency department with complaints of nausea, vomiting and abdominal pain. While she was being worked up, she got out of bed without calling for assistance, had a seizure and fell face forward. She sustained a subarachnoid hemorrhage and subdural hygromas. Janice and Bradly successfully challenged the plaintiff’s nursing expert’s qualifications to render standard-of-care opinions against a certified emergency nurse.

Missy Minehan (Harrisburg, PA) successfully presented preliminary objections and caused the plaintiff’s complaint to be dismissed, with prejudice. Dismissal was based upon the plaintiff’s fatal assertion in his certificate of merit that no expert testimony was necessary to prove his professional and corporate negligence claims against a skilled nursing facility where a nurse allegedly fell on a patient’s knee while taking the patient’s blood pressure.

Michael Mongiello (Harrisburg, PA) received a defense verdict following a binding arbitration hearing in a medical professional liability action. The plaintiff claimed that our client, an orthopedic surgeon, was negligent (directly or circumstantially under a theory of res ipsa loquitur) in causing a right common peroneal nerve injury during a L4-5 laminectomy and posterior spinal fusion. The plaintiff sought to prove that the peroneal nerve injury was the result of improper positioning and/or monitoring of the plaintiff intra-operatively. Our defense was that the plaintiff’s peroneal nerve condition was indicative of a spontaneous entrapment unrelated to the allegations of negligence, and for which she was predisposed due to a prior total knee replacement. The arbitrator agreed and returned a finding of no negligence.

Michael Mongiello (Harrisburg, PA) very favorably resolved a medical professional liability case arising out of the alleged occurrence of an unrecognized left tibial/medial plantar nerve injury during left ankle deltoid ligament reconstruction. Despite challenging liability issues, Mike was able to significantly discredit the plaintiff at her videotaped discovery deposition based on the findings of an extensive pre-suit investigation. After testifying to a having no criminal history, the plaintiff was confronted with multiple guilty pleas for writing bad checks. Also, Mike got the plaintiff to admit that she had asked a subsequent treating orthopedic surgeon to change his documentation in the records to enhance her lawsuit. Further, Mike established that much of the plaintiff’s testimony was inconsistent with the medical record documentation. Finally, although the plaintiff certainly has a component of nerve damage in her left foot, Mike elicited favorable testimony on damages, which suggested that the primary cause of her pain and debility was unrelated and due to preexisting mechanical conditions. The plaintiff’s demand pre-deposition was $450,000. Mike was able to resolve the case after the deposition for a de minimis payment of only $30,000.

John Ninosky (Harrisburg, PA) received a defense verdict in a case where the plaintiff alleged that a physician in the Lehigh County jail failed to properly treat his chronic back pain, and that the physician exhibited a deliberate indifference to his serious medical needs. Specifically, the plaintiff contended that he should have received a spinal cord stimulator during his incarceration. After two days of testimony, the jury returned a defense verdict, finding the physician did not exhibit a deliberate indifference to the plaintiff’s serious medical needs.

Professional Liability Department

Brigid Alford (Harrisburg, PA) filed preliminary objections challenging venue in a case where the plaintiff was asserting claims under the Telephone Consumer Protection Act. The trial court sustained the preliminary objections and dismissed the complaint in its entirety.

Josh Byrne (Philadelphia, PA) achieved a private reprimand for a client in a Disciplinary Board matter. This case had potential national implications where the allegations by Disciplinary Counsel included 93 paragraphs and alleged violations of multiple Rules of Professional Conduct. Josh also successfully defeated a petition for allowance of appeal to the Pennsylvania Supreme Court by the Office of Disciplinary Counsel, seeking to change a private reprimand to a public reprimand. Josh successfully defeated this petition, thus maintaining his client’s privacy.

Richard Goldstein (Mount Laurel, NJ) successfully obtained summary judgment in a case alleging violations of the New Jersey Law Against Discrimination and the New Jersey Conscientious Employee Protection Act. The plaintiff, a senior corrections officer, alleged that our client, a Lieutenant, discriminated against African-American female trainees by subjecting them to additional physical exercise because their hair did not meet the Department of Corrections Training Academy’s grooming policy. The plaintiff alleged a continuing pattern of discriminatory, harassing and retaliatory conduct on the part of the Lieutenant, spanning 2014 through 2016, after which the plaintiff alleged she was retaliatory charged with insubordination and later transferred from the training academy to a state prison. The court found that the Lieutenant’s enforcement of the DOC training academy’s grooming policy was not discriminatory, as it was enforced upon all trainees irrespective of race or gender, and was necessary in order for officers to effectively equip themselves with riot headgear. Next, the court found that the alleged “harassing” conduct on the part of the Lieutenant did not amount to a hostile work environment because the DOC is a quasi-military organization which requires enforcement of internal policies, and said policies were enforced by the Lieutenant in a non-discriminatory fashion. Lastly, the court found that the plaintiff failed to establish that the Lieutenant’s charge of insubordination against the plaintiff amounted to reprisal, as the plaintiff had admitted to partaking in insubordinate conduct. As such, summary judgment was summarily granted by the court and all of the plaintiff’s claims against the Lieutenant were dismissed with prejudice.

Kevin Bright and Lila Wynne (Mount Laurel, NJ) successfully moved to dismiss a third-party complaint against the insured in an environmental subrogation case. This case involved claims for contribution toward investigation and remediation expenses incurred by our client at the home of its insureds due to a leaking underground oil storage tank system. We filed suit against various fuel oil delivery companies that delivered to the property while the system was leaking. One of the defendants asserted a third-party complaint against the insureds for liability under the New Jersey Spill Compensation and Control Act and common law premises liability. We moved to dismiss the Spill Act claims on the basis of standing. We also moved to dismiss the premises liability claims on the basis that premises liability is inapplicable to claims for property damages. The court agreed with our position and granted the motion to dismiss.

Jeffrey Chomko (Philadelphia, PA) effectively shut down a Maryland Insurance Department investigation of a life insurance agent who was the subject of a customer complaint. The complaint alleged the agent oversold life insurance to a couple who contended that the amount of insurance was excessive, unsuitable and unnecessary. Jeff was able to demonstrate to the regulators that the agent did a thorough job in explaining the need for and purpose of the coverage and that the couple could afford the coverage, and actually drove the decision to purchase the coverage, only changing their mind later, after Jeff’s client was criticized by a subsequent insurance agent. Jeff also defeated a Certified Financial Planner Board investigation involving the same matter.

Jeffrey Chomko (Philadelphia, PA) successfully argued for the dismissal of an action in Wyoming County on a matter involving the sale by an agent of a number of mutual funds (with IRA retirement funds). In this case, the plaintiff contended the mutual funds were excessive and unsuitable. Jeff convinced the trial court judge that plaintiff’s counsel’s lack of activity for several years on the case, and his failure to respond to long-outstanding discovery, warranted dismissal of the lawsuit.

Brigid Alford (Harrisburg, PA) presented a successful 12(b)(6) motion to the Eastern District Court that resulted in the dismissal of the bad faith count and a count for Pennsylvania’s Unfair Trade Practices and Consumer Protection Law violations. The case arose from a motor vehicle accident and the insurer’s handling of a UIM claim that the insured-plaintiff had presented to it after the accident.

Josh Byrne and Alesia Sulock (Philadelphia, PA) succeeded in having a complaint dismissed, with prejudice, on preliminary objections in a legal malpractice action in Philadelphia County. Josh and Alesia had preliminary objections sustained in this multiple-count legal malpractice claim arising out of representation in a hotly-contested divorce matter. The plaintiff’s complaint was dismissed, with prejudice, as to all defendants.

John Slimm and Jeremy Zacharias (Mount Laurel, NJ) were successful before the New Jersey Appellate Division, which affirmed the Probate Court’s order granting our motion to dismiss the complaint of the beneficiary. The Appellate Division’s opinion in In the Matter of the Estate of Richard Ehrlich, 2022 WL 727357 (N.J. App. Div. March 11, 2022), protects the New Jersey Estates Bar in connection with probate litigation under New Jersey’s Probate Statute, N.J.S.A. 3B:17-8. The Appellate Division affirmed the Probate Court’s order granting our motion to dismiss the beneficiary’s complaint, which alleged that the attorney/administrator of the estate deviated from the standard of care, and erred in connection with sales of the decedent’s properties; in redeeming of tax certificates; and in the failure to investigate assets. Jack and Jeremy successfully argued that the beneficiary’s claims against the attorney/administrator of the estate were barred under New Jersey’s Probate Statute, N.J.S.A. 3B:17-8, which provides that judgments allowing accountings are considered res judicata as to all exceptions that might have been taken. In Ehrlich, the beneficiary filed numerous exceptions to the accountings presented by the attorney/administrator to the Probate Court in the underlying probate action. The Probate Court approved the accountings over the exceptions filed by the beneficiary. Then, the beneficiary filed a complaint against the attorney/administrator. The Appellate Division affirmed the decision of the Probate Court which found that the beneficiary’s complaint was barred under the doctrine of res judicata, as set forth in New Jersey’s Probate Statute, N.J.S.A. 3B:17-8. That is, once an accounting is approved, it serves as res judicata, meaning that later claims arising out of or in connection with the Administrator’s accountings will be barred.

Christopher Block and Erica Goldring (Roseland, NJ) prevailed on a motion to strike the plaintiff’s expert in a complicated New Jersey professional malpractice matter. Following two rounds of briefing and two rounds of oral argument, the court agreed that the plaintiff’s expert’s opinion was a net opinion and did not provide any substance or evidence of a lack of a duty of care.

Josh Byrne (Philadelphia, PA) achieved dismissal of a complaint before the Bureau of Professional and Occupational Affairs against a home appraiser based upon allegations of an improper appraisal.

Donald Carmelite (Harrisburg, PA) obtained summary judgment in a municipal liability case involving a trip and fall on a sidewalk in York City. The plaintiff fell while walking and sued the owners of the property and York City, alleging the City was negligent in failing to maintain the sidewalk and in failing to inspect, correct, or repair it. Don and Alissa argued that the plaintiff did not establish that York had any actual or constructive notice of the alleged defect, and that the plaintiff failed to meet her burden under the sidewalks exception to the Political Subdivision Tort Claims Act, 42 Pa. C.S. § 8541, et seq.

Mark Kozlowski (Scranton, PA) obtained summary judgment in a case involving a high-speed police pursuit. During early morning hours, a vehicle was observed by police officers driving straight through a turning lane. The officers attempted a traffic stop, but the driver took off and led police onto an interstate highway. A high-speed pursuit ensued, reaching speeds in excess of 115 mph. The plaintiff was a passenger in the vehicle. Due to the high speed and an upcoming construction zone, officers broke off the chase. The driver attempted to exit the interstate via an off ramp, but turned too fast and crashed. The driver died on impact, and the plaintiff-passenger was thrown from the rear of the vehicle and was wedged under the dashboard. The plaintiff sued several municipalities under a negligence theory. Following discovery, Mark filed motion for summary judgment on behalf of our client, arguing that the plaintiff’s claim was barred and the township was immune from suit pursuant to the Pennsylvania Political Subdivision Tort Claims Act. Following oral argument, the court granted Mark’s motion.

Mark Kozlowski and Patrick Boland (Scranton, PA) obtained a defense verdict following a six-day jury trial in the United States District Court for the Middle District of Pennsylvania. The plaintiff, a part-time police officer, alleged she told her Police Chief that she believed the hiring/promotions of three male police officers to full-time positions were illegal. After that meeting, the plaintiff claimed she was not assigned to higher-paying assignments like the male police officers in the department. She sued the borough and the police chief for First Amendment retaliation under Section 1983, and gender-based discrimination and retaliation pursuant to Title VII of the Civil Rights Act and the Pennsylvania Human Relations Act. Following a six-day trial and five hours of deliberation, the jury returned a complete defense verdict on all counts against both defendants.

Joseph Santarone and Joshua Brownlie (Philadelphia, PA) successfully obtained dismissal, with prejudice, of federal civil rights claims from the Eastern District of Pennsylvania for a former Philadelphia Assistant District Attorney. The plaintiff alleged he entered an involuntary guilty plea to murder following a defective plea colloquy with a Philadelphia Court of Common Pleas judge, who now sits on the Third Circuit Court of Appeals. The plaintiff alleged the transcript evidence of the colloquy was improperly altered by our client during his first post-conviction collateral proceeding, thereby resulting in violations of his Fifth, Sixth and Fourteenth Amendment rights. While recognizing the “quite sparing” application of common law immunities in Section 1983 litigation, the court accepted, and adopted, our argument that the Assistant DA was entitled to both absolute prosecutorial immunity and qualified immunity for his evaluation of the relied-upon transcript evidence. “Because nothing [Plaintiff] could allege would change this outcome, the Court’s dismissal [was] with prejudice.”

Jacob Gilboy (Scranton, PA) successfully disposed of a defamation action via preliminary objections. The plaintiff brought a defamation action against a public school district and certain district officials, alleging that he was defamed through a series of internal text messages exchanged between an elementary principal and another parent. Jake raised several procedural violations that occurred in the pro se plaintiff’s filings, and also argued legal insufficiency by way of demurrer. Following oral argument, the court agreed, granted all preliminary objections, and dismissed the complaint in its entirety.

Samuel Cohen (Philadelphia, PA) prevailed on a motion to dismiss a Rhode Island FINRA arbitration against his clients, a financial advisor and branch office manager, on the basis of res judicata and collateral estoppel.

James McGovern (Pittsburgh, PA) obtained a defense award in a FINRA arbitration proceeding in which the claimant was seeking $22 million in damages. The week-long arbitration was conducted via Zoom. The three-member arbitration panel deliberated for three weeks before unanimously dismissing the claimant’s claims in their entirety. The primary issue was an alleged Ponzi scheme involving an investment in a coal mining operation.

Workers’ Compensation Department

Congratulations to Angela DeMary and Bob Fitzgerald (Mount Laurel, NJ) for successfully obtaining an order to dismiss, with prejudice, a medical provider claim petition. The parties were litigating a motion for medical treatment in which a physician was recommending an additional spinal surgery. The physician moved forward without authorization and performed spinal surgery on the petitioner. In order to complete the surgery, the physician brought in several ancillary services, including a vendor to perform diagnostic monitoring during the surgery. Following the surgery, the medical provider submitted its bills to the carrier, which were rejected based upon the lack of authorization. After a medical provider claim petition was filed, the respondent filed a motion to dismiss the matter for failure to obtain the requisite statutory authorization. The medical provider argued that it was only providing ancillary services and, therefore, did not require the authorization of the carrier under the New Jersey workers’ compensation statute. The medical provider also argued that they were the innocent “victim” since they were advised by the physician that the procedure was authorized. The judge rejected both arguments, holding that all medical providers, including those that provide ancillary services for surgical procedures, are required to obtain the same authorization for their treatment or risk not receiving financial reimbursement. The dismissal, to date, has saved the employer approximately $32,000 in medical expenses.

Linda Farrell (Jacksonville, FL) took a workers’ compensation claim to a final hearing on a compensability issue. The employer/carrier asserted a statute of limitations defense and won at the trial level per an order. Also, Linda previously defeated a claim for permanent total disability benefits on this same claim.

Anthony Natale (Philadelphia, PA) successfully prosecuted a termination petition and at the same time defended a review petition on behalf of a Berks County mushroom facility in a falling object case. The claimant sustained a strain injury to his neck when he was struck by a stack of falling mushroom baskets at work. Although the baskets only grazed one side of his head and neck, the claimant alleged that his opposite shoulder was injured in the accident to the extent of a fully torn rotator cuff tendon. The claimant also alleged that a calcified longitudinal ligament in his neck was also caused by this accident, resulting in surgery and disability. Tony convinced the court that the only injury sustained during the incident was a neck strain that fully recovered—all other alleged injuries were found not to be work related.

Tony also successfully defended a Berks County mushroom/food plant in the litigation of a claim petition. The claimant claimed a work injury followed by an alleged wrongful discharge. Tony convinced the court the the discharge was secondary to a viable violation of company policy and that the claimant did not sustain any compensable injury that would have disabled her to begin with. Tony forced the claimant to admit that she did not treat medically for a period of 1.5 years after the alleged occurrence of the injury. Moreover, the claimant admitted on cross examination that she was actually working for the medical facility that was treating her for the alleged injuries. The judge found the claimant to be less than credible on all counts.

Tony also successfully argued for full recovery on behalf of a Philadelphia-based transportation company. The claimant had severe injuries due to a motor vehicle collision, which had sent the company van over an embankment. Tony was able to convince the trial judge that all of the claimant’s injuries had fully and completely recovered without residuals, including injuries to the head, neck, shoulders and back.

Finally, Tony garnered a dismissal of a claim petition on behalf of a Berks County trucking company. While hauling mushrooms, the claimant felt dizzy and exited his vehicle. After an episode of syncope, the claimant was whisked by ambulance and treated at two different facilities on an emergency basis, and was then admitted to a hospital for a cardiac work-up. The claimant was disqualified from driving a truck and remained out of work. Tony convinced the court that the admission to the hospital and the resultant disability was not work-related and was specifically due to an non-work-related cardiac problem.

Michele Punturi (Philadelphia, PA) successfully prosecuted a termination petition on behalf of a multi-national automotive manufacturing corporation. Michele presented the testimony of a board certified orthopedic surgeon, who not only conducted a comprehensive physical examination, but also reviewed pre- and post-diagnostic study films, which demonstrated that the claimant did not sustain any injury that resulted in any structural or anatomic change that would have an impact on the natural clinical course of pre-existing spinal degenerative disease.

Michele also successfully appealed the judge’s decision on behalf of a multi-national retailer, establishing a modification of benefits to partial disability, as opposed to total disability, which was awarded by the judge. This was established through medical evidence and factual testimony of two employer witnesses. This testimony proved that, during the period the claimant was briefly laid off while the employer was closed due to the COVID-19 pandemic, any earning loss fully attributable to the work injury was only partial in nature. Therefore, the claimant was only entitled to earnings for the loss of one day per week attributable to her injury, but not the remaining wage loss attributable to the pandemic closing. As a result, the employer was entitled to a Supersedeas Fund Reimbursement.

Robert Schenk (Philadelphia, PA) successfully handled a claim where the claimant, a landscaper, alleged a work-related low back injury. The claimant gave an inconsistent account of how his injury occurred and when he gave notice. Rob presented five fact witnesses from the employer, two of whom testified the claimant never gave notice, and three of whom testified he told them he was going to fabricate this workers’ compensation injury because he wouldn’t be entitled to unemployment compensation benefits at the end of the season. Coincidentally, the testimony revealed the claimant did not receive unemployment compensation benefits. The IME physician found that the claimant fully recovered from any injury he sustained. The claimant subsequently had two surgeries, with $750,000 in medical bills (unadjusted). The judge found that the claimant sustained a low back sprain and then terminated him as of the date of the IME.

John Swartz (Harrisburg, PA) successfully defended a claim petition where the claimant alleged he incurred a disabling work-related cervical spine and left shoulder injury. John presented expert medical testimony, as well as testimony from two employer witnesses, establishing that the claimant was offered modified duty and was discharged for cause, as he violated the employer’s attendance policy. No benefits were awarded as the judge accepted our medical expert’s testimony over that of the claimant’s treating physician’s testimony.

Frank Wickersham (King of Prussia, PA) successfully convinced the Workers’ Compensation Appeal Board to affirm a Workers’ Compensation Judge’s decision granting a petition to terminate benefits. The Board rejected the claimant’s argument that the testimony of the employer’s medical expert did not support the judge’s finding of a termination of benefits for a low back injury because the employer’s medical expert testified that, if the claimant was asymptomatic in her back prior to her slip and fall in a kitchen at work, the injury may have aggravated a pre-existing, underlying condition in her lumbar spine. But, at the judge level, the claimant admitted under cross examination that she had a prior work injury to her low back that she did not report, which caused her to experience ongoing low back symptoms. The Board noted that the potential expansion of the claimant’s low back injury, based upon the testimony of the employer’s medical expert, was dependent on whether the claimant had no prior low back complaints, which she said she did (and failed to disclose). The Board, thus, held that the judge correctly found the claimant’s low back injury was limited to that of a lumbar strain and sprain from which she was fully recovered.

Kacey Wiedt (Harrisburg, PA) prevailed on a lengthy case on behalf of a trash collection company. The case involved testimony from seven employer witnesses, in addition to medical expert testimony. Kacey successfully defended all petitions pertaining to the claim, including review and penalty petitions. This high-exposure case—the claimant had an average weekly wage of $2,846 with a maximum compensation rate—was the result of the claimant being terminated for failure to timely report a work-related injury as per company policy.

Judd Woytek (King of Prussia, PA) successfully defended a claim petition where the claimant was seeking benefits for the time period he had to quarantine after a possible COVID-19 exposure. The claimant admitted that he never tested positive for COVID. The judge agreed with Judd’s argument that the claimant had, therefore, not suffered an injury or contracted an occupational disease under the Pennsylvania Workers’ Compensation Act. The claim petition was denied and dismissed.

Judd was also successful in defending the claimant’s appeal from a judge’s decision which denied the claimant’s claim petition, denied the claimant’s utilization review petition and granted our termination petition relating to a medical-only notice of compensation payable. The Appeal Board affirmed the judge’s decision in its entirety by crediting Judd’s arguments raised at oral argument and in our brief.

Finally, Judd successfully prosecuted a termination petition and defended the claimant’s review petition in a case where the claimant had been struck by a forklift. The judge found that the claimant suffered nothing more than a right hip contusion and lumbar sprain/strain, from which he had fully recovered as of the date of our IME. The claimant’s review petition, seeking to expand the injury to include an aggravation of lumbar degenerative disc disease with lumbar radiculopathy, trochanteric bursitis of right hip and sacroiliitis, was denied.

*Results do not guarantee a similar result.

_{Defense Digest, Vol. 28, No. 3, October 2022 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. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2022 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}